S Randev & v D Randev (Migration)

S RANDEV & V. D RANDEV (Migration) [2020] AATA 3105 (15 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  S RANDEV & V. D RANDEV
CASE NUMBER:  1719479
DIBP REFERENCE(S):  BCC2017/1483161
MEMBER:Alan McMurran
DATE:15 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
.
Statement made on 15 May 2020 at 3:51pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Café or Restaurant Manager – future employment of the visa holder – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 26 August 2017 for review of a decision made by a delegate of the Minister for Immigration on 22 August 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicants applied to the Department for approval on 24 April 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: A Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicants have applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. The applicants are partners in a restaurant business trading as Flavours of India at Woden in the Australian Capital Territory, where they have been operating continuously for at least 17 years.
The delegate refused the application on the basis the applicants’ nomination did not satisfy r.5.19 (3) (d) (i) of the Regulations because insufficient supporting evidence was provided with the application to demonstrate the nominee, a 35-year-old citizen of India, would be employed on a full-time basis for a minimum period of 2 years in the position nominated of café and restaurant manager. The applicants in fact provided no supporting information at all to the Department.
On 24 February 2020, the Tribunal sent a letter to the applicants’ representative. The letter invited the applicants to provide updated and supporting information to satisfy the criteria in the Regulation.[1] The representative requested an extension of time and responded to the Tribunal with information and submissions on 17 March 2020.
[1] 5.19 (3)
The Tribunal has formed the view it can now determine the application based on the information before it, and pursuant to s.360 (2) of the Act, and without proceeding to a hearing.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal has available for consideration information from the Department’s file[2] and the information and recent submissions provided to the Tribunal in response to its request. The information provided by the applicants includes ASIC details, details of the nominee and the employment and the employment contract, an organisation chart, financial records and ATO lodgement records for 2017/2018, PAYG details, SBS approval and 457 information, employment history, duties and responsibilities in line with the occupation, and submissions from the agent.
[2] BCC2017/1483161
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.
The available information satisfies the Tribunal that the application was made on the correct form, accompanied by the prescribed fee. The application includes the written certification required that there is no conduct contravening section 245 AR (1) of the Act.
The Tribunal finds that the application identifies the nominee, Navdeep Kumar,[3] (the nominee) as the person who previously held a subclass 457, based on satisfying clause 457.223 (4) for the identified occupation of Café and Restaurant Manager (ANZSCO 141111). A related visa appeal by the nominee is pending in the Tribunal and the outcome of which will depend upon the review of this application by the nominator.
[3] Tribunal case file 1729308
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Tribunal finds that the applicants are the standard business sponsor who last identified the nominee as the holder of a Subclass 457 visa following an approved nomination on 1 May 2013 for the nominated occupation of café or restaurant manager. The Tribunal is further satisfied that the applicants have been actively and lawfully operating their restaurant business in the ACT since commencement prior to 2013, and which business continues as at the time of this decision.
The Tribunal finds that the applicants were not granted the business sponsorship based on regulations 1.20 DA, 2.59 (h) or 2.68 (i).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
The updated information provided to the Tribunal in March 2020 includes details of the nominee’s employment. The Tribunal finds that the applicants are trading as a partnership in the restaurant and the Tribunal is satisfied the partnership is the business entity applying for this nomination approval. The applicants have provided details of the nominated occupation including a description of the position and the duties and responsibilities which align with those in the ANZSCO guide.
The applicants have provided details of the nominee including a copy of his passport and the nominee’s employment history, which the nominee commenced in the role on or about 1 May 2013. The Tribunal is satisfied on the evidence available that the nominee has been employed in the nominated occupation during the whole of the period where the nominee held a subclass 457 visa, and in the 4 years since 2013, preceding the application.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension. The provision applies in this instance.
The applicants have provided a copy of a current employment contract renewed with the nominee by the applicants and dated 20 April 2017, for the role of restaurant manager. The Tribunal finds the employment contract does not preclude the possibility of an extension of the contract beyond a further 2 years full-time employment and notes the employment has been continuing since May 2013 (7 years at the time of decision).
Given the above findings, the Tribunal is satisfied that the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has had regard to the employment information provided[4] in response to the Tribunal’s invitation. That information includes the current terms and conditions of employment which the Tribunal is satisfied is comparable to the terms and conditions of employment for an Australian citizen or permanent resident performing equivalent work in the same workplace and at the same location. The Tribunal finds the salary in the order of $54,000 per annum plus superannuation is a comparable salary for the occupation.
[4] updated employment agreement made 20 April 2017 (and continuing).
Given the above, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The evidence before the Tribunal reveals that the most recent standard business sponsorship was approved[5] prior to 18 March 2018, when the requirement for the training commitment for this nomination approval was repealed.
[5] 1 May 2013 to May 16
The evidence before the Tribunal shows that as at the most recent sponsorship approval, the applicants expended $3000 on participatory training through the Victorian Institute of Culinary Arts and Technology. The invoice is dated 10 January 2017. In order to meet the training benchmark (Benchmark B), the applicant is required to spend 1% of its gross payroll on training of Australian citizens or permanent residents, and upon training relevant or related to the business.
The payroll for the relevant year, May 2016 to May 2017, shows wages of $247,949, aligned against training expenditure for that year of $3000, equating to an outlay of 1.2%.
The Tribunal finds it is satisfied on the information available[6] that the applicants have complied with the applicable sponsorship obligation relating to their training commitment during the relevant period (2016-17).
[6] financial statements for the year ended 30 June 2016 provided by the applicants’ accountant
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The information before the Tribunal shows that the applicants were monitored for a period in 2012 and returned report of satisfactory compliance.
The Tribunal finds it is not aware of any adverse information known to Immigration or the Tribunal about the nominating business (or the nominee) or any person associated with either of those entities.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicants to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicants operate a business and employ employees in the business, relating to workplace relations.
The Tribunal finds there is no information before it that the applicants have other than a satisfactory record of compliance with relevant State, Commonwealth and Territory laws, in the locations in which they operate and employ staff. Accordingly, the Tribunal finds the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicants meet the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alan McMurran
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)      is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)       both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)      all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)       the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)      it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

[2020] AATA 3105

15 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness