SASMAN GROUP PTY LTD (Migration)

SASMAN GROUP PTY LTD (Migration) [2018] AATA 1935 (22 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SASMAN GROUP PTY LTD
CASE NUMBER:  1719534
DIBP REFERENCE(S):  BCC2016/2050692
MEMBER:Karen McNamara
DATE:22 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 May 2018 at 10:33am
CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Need for a paid employee – Financial statements – Current and historical details – PAYG summary – Employment contract – Decision under review set side
LEGISLATION
Migration Act 1958, ss 245AR, 359
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 August 2017 to reject the application by Sasman Group Pty Ltd ( the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 June 2016. 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 applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant demonstrated a need for the nominator to employ a paid employee to work in the position of fulltime Cook under the nominator’s direct control.
Background
The applicant lodged an application for an employer nomination approval for the position of Cook – ANZSCO 351411 under the Direct Entry stream. The proposed salary is $54,000 per annum.

When considering the application, the delegate took into account the following issues:
·The applicant provided a number of financial documents including but not limited to:
oNotice of Assessment for the nominee for the year ended 30 June 2013;2014 and 2015
oABN Lookup details for ABN: 79 169 559 942
oASIC extract for ABN:79 169 559 942
oTraining Invoices
oEmployment contract
oPAYG payment summary issued for the nominee for the financial year ending 30 June 2013 and 2014 issued by payer ABBN 91 882 686 117
oPAYG payment summary, in draft form, issued by payer ABN 79 169 559 942
The delegate noted the nominator “has not provided sufficient evidence to establish the need for a paid employee to work in the nominated positon. The delegate considered that the PAYG payment summaries and noted that the first two financial years are issued by a different employer as indicated by a different ABN used on these documents”. The delegate also considered the most recent PAYG payment summary for the year ending 30 June 2015 and noted “that this is a handwritten document and not one that can be utilised as substantive evidence of existing employment”. The delegate gave little weight to this document.
The delegate further considered the Notice of Assessment for the nominee for the years ending 30 June 2013, 2014 and 2015 and noted “that these documents are issued by the Australian Taxation Office and therefore could be considered as verifiable evidence of income. However these documents are an indicative of the nominee’s income and do not indicate the source of income.” The delegate placed little weight on this document as verification of existing employment.
The delegate further noted “no evidence has been provided to indicate that the business has experienced growth or has intended diversification of activities, which could be indicators of the need for the nominated position. “ No evidence had been provided such as an organisation chart to show how the position fits in to the activity of the business. No information has been provided to indicate that there has been an increase in business activity, which may indicate the creation of a vacancy”.
Based on these considerations and the evidence provided by the applicant, the delegate was not satisfied that the applicant had demonstrated a need for a paid employee to work in the position under the direct control of the nominator. The delegate therefore found that regulation 5.19(4)(a)(ii) is not met and the nominator does not satisfy regulation 5.19(4)(a).
Information to the Tribunal
The Tribunal wrote to the applicant under s.359 (2) of the Act on 20 February 2018, inviting them to provide information in writing to demonstrate that the applicant meets the requirements of the criteria in r.19(4) of the Regulations, including r.5.19(4)(a) of the Regulations.
On the 23 February 2018 by email the applicant’s authorised representative provided further information to the Tribunal i.e.:
·ASIC Current & Historical Extract
·Certificate of Registration of a company
·Record of Registration for Business name –Café Martini
·Business Activity Statements:
oOctober 2016 to December 2016
oJuly 2016 to September 2016
oOctober 2017 to December 2017
oJuly 2017 to Sep 2017
oApr 2017 to Jun 2017
oJanuary 2017 to March 2017
·Financial Statements 30 June 2017
·Statements from ConnectW Registered Tax Agent/Accountant dated 6/02/2018 & 09/02/2018
·Bizcover Certificate of Insurance
·Numerous supplier invoices
·Training provider invoice dated 1/05/2017
·Lease agreement signed and dated 16/07/2016

On the 6 March 2018, additional information was provided to the Tribunal:

·Salary comparison -Indeed.com
·Contract of employment Mr Man Bahadur Tamang signed and dated 30/01/2018
·Financial Statements 30 June 2016
·Organisation Chart
·Café Martini menu
·Department of Immigration and Border Protection - Notification of approval as a Temporary Business Entry Standard Business Sponsorship dated 7 October 2015

Ms Gita Dawadi and Mr Matthew Johnston appeared before the Tribunal on 13 April 2018 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from Mr. Alex Merrick Café Manager. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepalese and English languages.
The applicant was represented in relation to the review by its registered migration agent Mr. Nigel Dobbie.
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 applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a)(i) 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 need for the nominator to employ a paid employee to work in the position under their direct control (r.5.19(4)(a)(ii)).
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. Accordingly the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Ms Dawadi and Mr Johnston.
The Tribunal accepts on the evidence before it that the nominator operates a café business in the Sydney metropolitan area. The business’s annual turnover for the 2016/17 financial year was $377,863 and it employs nine people.
Mr Johnston advised that he does not draw a wage from the business as his main source of income is derived from his other employment as a consultant. Ms Dawadi advised she does not draw a wage and receives payment as a Director from the company’s profit advising in 2017 she received $1,492.
Mr Johnston gave evidence at the hearing that he and Ms Dawadi purchased the established Café business in 2014, and both had previously been working in the establishment as employees of the previous owner. Mr Johnston told the Tribunal his knowledge of the business and having worked with the staff was a key contributor to his commitment to investing with Ms Dawadi in the business, particularly knowing the Café had the right staff.
Mr Johnston told the Tribunal that Mr Tamang was already employed by the business when he and Ms Dawadi bought it. He had personally worked alongside Mr Tamang and was impressed by Mr Tamang’s commitment to his duties and knowledge of the kitchen operations.
The Tribunal asked Mr Johnston why Mr Tamang had been promoted to Head Cook and why the business had increased Mr Tamang’s salary from $54,000 to $63,000. Mr Johnston gave evidence that Mr Tamang had been promoted to the position of Head Cook in recognition of his experience and supervisory capability to manage kitchen operations and importantly he demonstrated the ability to maintain consistency in the kitchen. Mr Johnston told the Tribunal that Mr.Tamang’s familiarity with the business and his experience as a Cook is seen as vital to the success of the café.
In regard to the payment of a higher salary, Mr Johnston told the Tribunal that the Café is located in a highly competitive environment. Attracting long-term experienced staff can be problematic, hence the business provided a wage increase to Mr Tamang in recognition of his commitment and experience.
The Tribunal noted the organisational chart provided by the applicant at time of hearing and asked the applicant about the business need to employ four Cooks. Mr Johnston advised that the café operates 7 days a week and having regard for the hours of operation, the Cooks work shifts and not all four work together at one time in the kitchen. The three cooks working under the direction of Mr Tamang, work the grill and that the kitchen operates under the brigade system where there is a strict chain of command with Mr Tamang providing direction.
The Tribunal also had the opportunity to discuss with Mr Johnston the nature of the position and tasks involved and had regard to the evidence of Ms Dawadi and Mr Merrick and other supporting material.
The Tribunal has given weight to the increase in sales as evidenced in the comparison of the applicant’s 2016 and 2017 financial statements and submitted BAS returns. Since the delegate’s decision of 7 August 2017, the growth in business indicates the need to increase kitchen operations, hence the creation of a Cook position to meet growth in custom.
On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirements of r.5.19(4)(a)(ii) are met.
As the criteria in both r.5.19(4)(a)(i) & (ii) are satisfied, accordingly, the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
On the basis of the material before the Tribunal, including the applicant’s bank statements, Financial statements, current and historical details for ACN 169 559 942 being details for Sasman Group Pty Ltd trading as Café Martini, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. The available evidence indicates that Sasman Group Pty Ltd was registered as a company on 15 May 2014 and trades as Café Martini, directly operating a food and beverage business in Newton NSW. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no indication that the nominator’s activities include any labour hire activities.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes the delegate was not satisfied that the nominee’s Notice of Assessments for financial years ending 2013, 2014 and 2015, whilst indicative of income, did not indicate the source of the income.
The Tribunal has had the benefit of more detailed and updated financial information, plus receiving oral evidence form Mr Johnston and Ms Dawadi.
The Tribunal notes the gross payments declared on PAYG payment summaries issued by Café Martini on the 1/8/2013 and 11/9/2014 correspond with taxable income commensurate to these amounts on the nominees Notice of Assessment for the same periods. A handwritten PAYG summary for 2015 whilst unverified as being issued does however declare a salary amount commensurate with the taxable income noted on the nominee’s Notice of Assessment for 2015.
At the Hearing the applicant was asked to supply evidence of the payment to staff via the business operating account and a copy of Mr Tamang’s Notice of Assessment for Tax returns for 2016 and 2017 financial years.
The Tribunal examined the financial information submitted by the applicant. The financial documentation confirmed for the 2017 financial year total salary and wage expense of $212,559 and a net profit of $1,492. BAS returns for the corresponding period confirm salary and wage expenses of $212,559. Mr Tamang’s 2016 Notice of Assessment confirmed a taxable income commensurate with $54,000 p.a. The Tribunal noted that information provided by the applicant from the ATO portal indicated that Mr. Tamang submitted his 2017 tax return after the date of hearing.
The Tribunal notes the company is operating on marginal profit however it also notes the equity of the business for 2017 financial year as $131,686, the Tribunal has given weight to the history of payment of salary to Mr Tamang of $54,000 p.a. as stated on the nomination application. The Tribunal further notes, since February 2018 Mr Tamang has received a pay increase to $63,000 p.a.
The Tribunal is satisfied the business can afford to pay a salary of $54,000 per annum to the nominee as outlined above, and is satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the employment contract between the nominee and applicant dated 30 January 2018, which sets out the terms and conditions of the nominee’s employment. The contract indicates that it is for full-time, ongoing permanent employment and will take effect from the date the subclass 186 visa is granted to the nominee. There is no clause that excludes the possibility of an extension. Accordingly, the requirement in r.5.19(4)(d)(ii) is met.
As the criteria in both r.5.19(4)(d)(i) & (ii) are satisfied, accordingly, the requirements in r.5.19(4)(d) are met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(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 applicant does not employ any Australian Citizens or permanent residents to perform equivalent work as the nominated worker. The terms and conditions in the employment contract for the nominated worker are consistent with National Employment Standards.
The applicant provided a copy of market rate evidence in the form of job advertisements for similar positions within the Newtown locality. This evidence indicates a market rate between $54,000 to $55,000. Evidence before the Tribunal indicates Mr Tamang is being paid $63,000 plus superannuation. The Tribunal is satisfied the salary amount and the terms and conditions paid to the nominee are no less favourable than those that would be provided to an Australian citizen or permanent resident performing the same work in the same place in NSW.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) 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.
There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
There is no evidence before the Tribunal that suggests the applicant does not have a satisfactory record of compliance with workplace relations of the Commonwealth and the State of NSW.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/060), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

The tribunal determines as follows:
In the nomination application, the applicant specified that the position and the nominator’s business were located at Newtown (metropolitan Sydney), which is not classified as ‘regional Australia’ for the purposes of r.5.19(4)(h) accordingly the Tribunal must be satisfied that the requirements of r.5.19(4)(h)(i) are met.
The Tribunal accepts on the evidence before it that the applicant is the owner of a Café providing food and beverages in the Sydney metropolitan area. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph. IMMI 16/060 provides that Cook is a specified occupation for the purposes of r.5.19 (4)(h)(i)(A). Cook with ANZSCO code 351411 is found in Schedule 1 of this Instrument. The Tribunal is further satisfied that the tasks will be carried out in Australia. Accordingly the requirements of r.5.19(4)(h)(i)(A) are met.
Mr Johnston and Ms Dawadi gave evidence that the position of Cook is critical to the success of the business’s operations and viability in that Mr Tamang is a trusted and long time serving employee of the business.
Information before the Tribunal supports the employment of Mr Tamang in the position of Cook with the applicant, since purchase of the business in 2014. Mr Tamang also worked in the business prior to 2014 under the employment of the previous owner.
The Tribunal is satisfied that the tasks of the positon will be performed in Australia and that the occupation is applicable to the person identified under subparagraph r.5.19(4)(a)(ii) in accordance with the specification of the occupation. Accordingly the requirements of r.5.19(4)(h)(i)(A) and (AAA) are met.
As the applicant’s business has been operating for more than 12 months, the applicant must meet the requirements for the training of Australian citizens and permanent residents specified by the Minister for the purposes of r.5.19(4)(h)(i)(B)(I). The relevant written instrument, IMMI 13/030, specifies in Schedule A that the training benchmarks for an established business are:
(A)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
(B)recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The applicant has sought to meet training benchmark (B), through payment of at least 1% of its payroll in the provision of training to employees of the business.
Information before the Tribunal, provided by the applicant shows payment of $2,510 invoiced and receipted by Nick Hannay Pty Ltd 1 May 2017 for training attended by employee Sumu Chapagain an Australian Permanent Resident. For the purpose of consideration as to whether the applicant met their obligations under r 5.19(4)(h)(i)(B)(I) the Tribunal considered it reasonable to look at the applicant’s 2017 financial year training expenditure.
The applicant’s accountant has provided evidence that its payroll expenditure for the 2016/17 financial period was $232,754, 1% of which is approximately $2,327. The applicant also provided evidence of having paid $2510, receipted on 1 May 2017. As this amount exceeds 1% of the known payroll expenses of the applicant’s business, the Tribunal is satisfied that r.5.19(4)(h)(i)(B)(I) is met.
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets 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.
Karen McNamara
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.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’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)       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
(g)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; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2018] AATA 1935

22 May 2018

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