SPARKLING CATERING & EVENTS PTY LTD (Migration)

SPARKLING CATERING & EVENTS PTY LTD (Migration) [2021] AATA 447 (26 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SPARKLING CATERING & EVENTS PTY LTD
CASE NUMBER:  1818280
HOME AFFAIRS REFERENCE(S):          BCC2017/1972531
MEMBER:Mary Sheargold
DATE:26 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 February 2021 at 11:27am
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training obligations – expenditure during most recent period as standard business sponsor – no expenditure during first year – reasonable to disregard requirements – total expenditure over three years exceeds requirements – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), rr 2.87B(2), 5.19(3)(f)
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 Home Affairs on 4 June 2018 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 applicant applied for approval on 3 June 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the applicant did not demonstrate that it had met its obligations in relation to training during the period of its most recent standard business sponsorship approval, and it was not reasonable to disregard that requirement.
Ms Lorraine Khouri, a director of Sparkling Catering & Events Pty Ltd (the applicant), appeared before the Tribunal by telephone link on 24 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Melchiore Saladino, the other director of the applicant, and the nominee, Mr Reynold Andika Tjhin. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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 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.
On 20 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated information in relation to its business. The letter stated that a response was due by 4 December 2020. On 2 December 2020, the applicant’s representative wrote to the Tribunal requesting a 2 week extension to provide the requested information. The Tribunal granted the applicant that extension of time, to 18 December 2020, to provide the information. On 17 December 2020, the applicant’s representative provided the following documents to the Tribunal in support of the application:
·a copy of the current company extract for the applicant from the Australian Securities and Investments Commission (ASIC) dated 30 November 2020;
·a copy of the current and historical extract for the applicant from ASIC dated 30 November 2020;
·a copy of the applicant’s most recent standard business sponsorship approval notification, covering the period 9 December 2014 to 9 December 2017;
·copies of business activity statements (BAS) for the applicant for each quarter from 1 September 2018 to 30 June 2020;
·detailed financial statements for the applicant’s business for the financial years ending on 30 June 2018 and 30 June 2019;
·copies of lodged income tax returns for the applicant’s business and for its related entity, Sparkling & Co, for the financial years ending on 30 June 2018 and 30 June 2019;
·profit and loss statements for the applicant and for Sparkling & Co for the financial year ending on 30 June 2020;
·balance sheets for the applicant and for Sparkling & Co for the financial year ending on 30 June 2020
·an organisational chart including citizenship/resident status for the applicant’s employees;
·sample menus and photographs showing the nominee’s performance of his duties;
·an employment contract between the applicant and the nominee dated 9 February 2017;
·a copy of the nominee’s contract of employment with the applicant dated 30 November 2014;
·PAYG for the nominee for each financial year ending on 30 June from 2016 to 2020;
·sample payslips for the nominee from 2015-2017 and 2019-2020;
·notices of assessment from the Australian Taxation Office (ATO) for each financial year ending on 30 June from 2016 to 2020 inclusive; and
·evidence of payments made in relation to training of staff.
On 23 December 2020, the applicant’s representative provided a further piece of evidence in relation to training expenditure.
On 17 February 2021, prior to the hearing, the applicant’s representative provided written submissions in support of the application, as well as a body of detailed submissions and evidence relating to the training requirements for the applicant’s most recent standard business sponsorship approval.
The Tribunal has considered all of the written submissions and evidence in support of the application provided to the Tribunal, as well as the evidence of Ms Khouri and Mr Tjhin, in reaching its decision.
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 Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. The letter from the Department to the applicant dated 3 June 2017 indicates that the nomination application fee has been paid.
The application for approval identifies Mr Reynold Andika Tjhin, the nominee who, according to Departmental records, held a Subclass 457 visa from 9 February 2015 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2 to the Regulations.
The application for approval identifies the occupation of Cook, ANZSCO 351411. Based on the employment documents for the nominee, as well as the evidence provided by Ms Khouri at the hearing, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (3514) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.
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.
Departmental records confirm that the nominator was the standard business sponsor who last identified Mr Tjhin in a nomination made under s.140GB of the Act. The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h), or r.2.68(i).
The applicant has provided the Tribunal with a copy of its ASIC records dated 30 November 2020, a balance sheet and a profit and loss statement for the financial year ending on 30 June 2020, company tax returns for the financial years ending on 30 June 2018 and 2019, BAS from September 2018 to June 2020, and numerous other documents demonstrating that it is operating its business in Australia. The Tribunal has also considered Ms Khouri’s detailed oral evidence regarding the business operations of the applicant during the Covid-19 pandemic.
On the basis of the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, 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.
In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 3 June 2017.
The nominee was granted his Subclass 457 visa in the nominated occupation of Cook on 9 February 2015, sponsored by the applicant. The applicant was most recently approved as a standard business sponsor from 9 December 2014 to 9 December 2017.
The Tribunal has had regard to the Notices of Assessment from the ATO for the nominee provided by the applicant for each financial year from 30 June 2016 to 30 June 2020 inclusive, the PAYG statements for the nominee for the same financial years, the payslips provided for the nominee, and the evidence at the hearing from Ms Khouri, that the Tribunal accepts, that Mr Tjhin has worked for the nominee for at least 2 of the 3 years immediately prior to the application being made, since February 2015 without any extended leave, and finds that the nominee has been working for the applicant in the role of Cook continuously since that time.
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 Tribunal has considered the latest contract of employment between the applicant and the nominee dated 9 February 2017 (the employment contract). Clause 2(b) of the employment contract states that it is an “ongoing full time position, available for at least 3 years from the date of the subclass 186 visa grant.” The Tribunal finds that there is no fixed term in the contract and that employment will be provided for at least 3 years. Therefore, the Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment after the applicant has held a Subclass 186 visa for at least 2 years.
The Schedule to the employment contract stipulates that the nominee’s base salary is $54,500 per year. At the hearing, Ms Khouri gave evidence that the applicant currently employs the nominee and one other sponsored worker, and that they are sub-contracted to work for the applicant’s related entity, Sparkling & Co. Ms Khouri gave detailed evidence regarding changes to the structure of the applicant’s business due to major redevelopment at the applicant’s previous business site. Ms Khouri explained that Sparkling & Co has identical directorships and shareholdings as the applicant. Ms Khouri’s evidence is that Sparkling & Co operates at another location, providing sit down and take away food services, as well as utilising its commercial kitchen facilities for the applicant’s catering and events business. The Tribunal has considered the recent balance sheets and profit and loss statements provided in respect of both the applicant and Sparkling & Co, and notes that whilst the applicant’s business has recorded small losses in recent years, its gross profit from trading is steady, and there is clear evidence that the applicant has supported the nominee’s salary and benefits to date. The Tribunal accepts Ms Khouri’s evidence at the hearing regarding her intent for the applicant to re-open at its former premises after the redevelopment has taken place, and accepts her evidence that the applicant’s business in external catering has in fact increased during the Covid-19 pandemic.
Based on all of the evidence before it, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of extending the period of employment.
Given the above findings, 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 notes that the employment contract provides for a salary of $54,500 per annum. The employment contract notes that superannuation is payable at the applicable rate required by law.
Under the terms of the Restaurant Industry Award 2010 (MA000119) (the Award), the minimum weekly rate of pay for the highest grade of Cook, being a Cook grade 5 (Tradesperson) is $941.10 per week, which equates to an annual salary of $48,937.20. The Tribunal finds that the nominee’s salary of $54,500 per annum is in excess of this minimum amount.
The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave, notice, and termination are in accordance with the obligations in the Award and the minimum standards set out in the National Employment Standards and relevant workplace relations legislation.
Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, 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 Department refused to approve this application because the applicant did not provide any evidence that it had incurred expenses in relation to training during the period of its most recent standard business sponsorship approval. The applicant was most recently approved as a standard business sponsor from 9 December 2014 to 9 December 2017. The applicant is required to demonstrate that it met its obligations with respect to training, as set out below, at the time of this decision. The applicant has now provided evidence to the Tribunal regarding its efforts to comply with those obligations in each year of its most recent standard business sponsorship approval.
Regulation 5.19(3)(f)(i) requires the applicant to demonstrate that it has fulfilled the commitments made as a standard business sponsor in relation to training. The Tribunal notes that at the time this application was made, these obligations were set out in reg 2.87B(2) of the Regulations. The obligations under reg 2.87B(2) were to comply with requirements relating to training as set out in an instrument in writing for each 12 month period of its sponsorship approval. Those requirements are set out in Schedule A to IMMI 13/030 – Specification of Training Benchmarks and Training Requirements.
In summary, the applicant must demonstrate that it has made recent expenditure by the business to the equivalent of 2% of the payroll of the business in payments allocated to an industry training fund that operates in the same industry as the business (Training Benchmark A), or 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 (Training Benchmark B), and the applicant must demonstrate that it has met one or other of these training benchmarks for each year of its most recent sponsorship approval.
The representative’s submissions note that for the purposes of calculating payroll periods, the closest calendar year was used (e.g. 1 January 2015 to 1 January 2016 for the first year). The Tribunal accepts this calculation method and makes its findings on this basis. The applicant seeks to comply with the requirements of Training Benchmark B in each year of its most recent standard business sponsorship approval.
The Tribunal notes that, by the applicant’s own admission, it did not incur training expenses allowable under Training Benchmark B during the first year of its most recent standard business sponsorship approval. As such, the Tribunal finds that the applicant cannot meet the requirements of r.5.19(3)(f)(i), and the Tribunal will therefore consider whether it is reasonable to disregard the obligations in relation to training in the circumstances.
The Tribunal notes that whilst it is not bound by Departmental policy, the PAM3 guidelines set out the circumstances in which the requirements of r.5.19(3)(f)(i) may be disregarded. These include circumstances where the applicant can demonstrate that it has an aggregate expenditure on training over the term of its most recently approved sponsorship period commensurate with the total training commitment for that period, and this may be assessed at the time of decision.
The Tribunal has considered the evidence before it and makes the following findings:
·in the first year of its most recent standard business sponsorship approval, the applicant relies on its total payroll expenditure figure for the 2015 calendar, being $455,714.00;
·in the second year of its most recent standard business sponsorship approval, the applicant relies on its total payroll expenditure figure for the 2016 calendar year, being $481,320.96; and
·in the third year of its most recent standard business sponsorship approval, the applicant relies on its total payroll expenditure figure for the 2017 calendar year, being $215,780.00.
The Tribunal has combined these 3 figures to find a total payroll expenditure of $1,152,814.96 during the period of the applicant’s most recent standard business sponsorship. The Tribunal notes that 1% of this figure is $11.528.15.

The applicant has provided evidence in the form of invoices, receipts, training plans, and residency verification to show a total training expenditure in fulfilment of the obligations under Training Benchmark B of $14,657.10 across the total period of the applicant’s most recent standard business sponsorship approval. The Tribunal finds that this amount exceeds 1% of the applicant’s total payroll expenditure during the period of the applicant’s most recent standard business sponsorship.
Therefore, based on all the evidence before it, the Tribunal is satisfied that it is reasonable to disregard the requirements of r.5.19(f)(i). 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.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
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 applicant to have 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 information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. The Tribunal notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.
On the basis of the evidence before it, the Tribunal is satisfied that the requirement in r.5.19(3)(h) is 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.
Mary Sheargold
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.

[2021] AATA 447

26 February 2021

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