Straits Chef Pty Ltd (Migration)

Straits Chef Pty Ltd (Migration) [2020] AATA 5850 (15 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Straits Chef Pty Ltd
CASE NUMBER:  1902029
HOME AFFAIRS REFERENCE(S):          BCC2017/1914123
MEMBER:Amanda Mendes Da Costa
DATE:15 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 15 December 2020 at 12.26pm

CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – adverse information about the sponsor – Australian Border Force infringement penalty paid – infringement for a related business – standard business sponsorship not cancelled – failure to check on an employee’s visa status which was cancelled – applicants adopted visa checking procedures – infringement more than three years ago – proposed employed full-time for at least 2 years – terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, rr 1.13, 2.57, 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 Home Affairs on 14 January 2019 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 30 May 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)(g) of the Regulations because there was adverse information known to the Department about the applicant and it was not reasonable to disregard that adverse information.
Mr Ming On (Thomas) Lee appeared (by telephone) on behalf of the applicant at the hearing before the Tribunal on 25 August 2020, to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal has taken into account that the applicant provided it with documentation regarding the review prior to the hearing, was represented by its migration agent (who participated in the hearing) and was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, who also participated in the hearing.
The documents provided to the Tribunal by the applicant for the purpose of the review, included the following:
·Australian Securities and Investment Commission (ASIC) current and historical extract for the applicant, dated 1 June 2020;
·taxation returns for the applicant, for the financial years 2018 and 2019;
·business activity statements (for the applicant) from January 2018 to March 2020;
·business activity statements for Lee Tien Pty Ltd for the period July 2019 to June 2020;
·financial statements for the applicant for the financial years 2014, 2015, 2016, 2017, 2018 and 2019;
·organisational charts for the applicant and Lee Tien Pty Ltd;
·employment agreement;
·position description;
·information about the nominee’s employment while subject to his subclass 457 visa;
·nominee’s PAYG payment summaries for the financial years 2015, 2017, 2018 and 2019;
·nominee’s notice of assessment for the financial year 2018;
·nominee’s subclass 457 visa employment contract;
·income taxation estimation record for the financial year 2016;
·salary increase letter for the financial years 2016 and 2017;
·sponsorship approval letter for the applicant’s most recent period of standard business sponsorships[1];
·receipts for payments made by the applicant to training organisations for the years 2014, 2015, 2016 and 2017;
·details of employees who received training in the years 2014 to 2017;
·letter of support by Mr lee and Ms Tien dated 30 June 2020; and
·written submissions dated 5 June and 2 October 2020.
[1] 18 February 2014 to 18 February 2017. The applicant has not renewed or applied for a further period of approval.
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.
Evidence of Mr Ming On (Thomas) Lee
The applicant and the companies Lee Tien Pty Ltd and Abundent Consulting Pty Ltd are owned and operated by Mr Ming On (Thomas) Lee and Ms Amber Tien, who are husband and wife. They are the directors are shareholders in the applicant and Lee Tien Pty Ltd. Mr Lee is the sole shareholder and director of Abundent Consulting Pty Ltd. The companies own, operate and licence several restaurant businesses in Melbourne. These restaurants focus on Asian and Malaysian cuisine under the Chef Lagenda brand. This brand was established in 2004 with the first restaurant in Deer Park which is owned by Lee Tien Pty Ltd. Mr Lee and Ms Tien have subsequently expanded their business by opening restaurants in Richmond and Flemington. The restaurant in Richmond is owned by Lee Tien Pty Ltd whilst the one in Flemington is owned by the applicant. A further two restaurants in Hawthorn and Toorak are franchises were established in 2016 and 2018 respectively.
Mr Lee is the sole shareholder and director of Abundent Consulting Pty Ltd, which own the intellectual property in the Chef Lagenda brand and is responsible for the licencing of the Chef Lagenda brand.
Mr Lee arrived in Australia (from Malaysia) in 1986 and is a trained chef, specialising in authentic traditional Malaysian food. After arriving in Australia, he worked as a chef in several restaurants before establishing his first Chef Lagenda restaurant.
The applicant was registered in 2009 and was initially conceived as a joint venture with a former partner who held a 20% share in the business. This involvement of a third party was the reason for separating the operations of the Flemington restaurant from those of the Deer Park and Richmond restaurants in which Mr Lee and Ms Tien are the only shareholders. Subsequently, the couple’s business partner decided to cease his involvement and investment in the applicant and his share in the business was transferred to Ms Tien.
In addition to owning and operating the Flemington restaurant and being responsible for the daily operations of the business, Mr Lee and the staff of the restaurant are responsible for the development of the menu for the Chef Lagenda brand. As executive chef for the Deer Park, Flemington and Richmond restaurants, Mr Lee is currently responsible for menu development and the training of chefs for those three restaurants and the two franchised restaurants in Hawthorn and Toorak. Ms Tien is responsible for the financial aspects of their businesses.
The three companies (the applicant, Lee Tien Pty Ltd and Abundent Consulting Pty Ltd) currently have a combined total of more than 40 employees, including the nominee.
Following the lodging of the nomination application on 30 May 2017 the Department undertook enquiries to confirm the information provided by the applicant. During this process the Department received unfavourable information regarding the applicant. That information was that on 31 October 2016 the Australian Border Force (ABF) issued an infringement notice in the amount of $8,100.00 to Lee Tien Pty Ltd.
This notice was issued as the result of a site visit conducted by the Departmental officers at the Chef Lagenda Richmond restaurant on 22 September 2016 where they discovered that Lee Tien Pty Ltd had employed an unlawful non-citizen, Mr Teck Keah Siak, as a cook.
On 17 November 2016 the Department was provided with a receipt dated 10 November 2016 from Tien Lee Pty Ltd, as evidence that the amount of $8,100.00 (the prescribed infringement penalty had been paid.
By letter dated 10 August 2018 the Department invited the applicant to comment on the above adverse information. The applicant was given 28 days to provide a written response.
On 4 September 2018 the applicant provided a written response to the Department in which inter alia it submitted that the infringement notice was related to Lee Tien Pty Ltd which is a separate company from the applicant and has its own Australian Business Number.
The Tribunal notes that the directors of Lee Tien Pty Ltd are Thomas Ming On Lee and Amber Tien who are also directors of the applicant company.
Australian Securities and Investment Commission (ASIC) records show that Lee Tien Pty Ltd as the owner of the business Chef Lagonda Malaysian Kitchen. The business operates from the following locations:
·16 Pin Oak Crescent, Flemington, 3031, Victoria;
·Shop 9/10, 835A Ballarat Road, Deer Park, 3023, Victoria; and
·724 Glenferrie Road, Hawthorn, 3122, Victoria.
In the nomination application, the applicant stated that the company’s trading name was Chef Lagenda and the address where the nominee will be employed is 16 Pin Oak Crescent, Flemington.
The applicant’s written submissions to the Tribunal[2] include the following:
·The applicant has not been subject to monitoring by the Department;
·The applicant has not been the subject of any investigation about a possible contravention of the law;
·The applicant is still actively and lawfully trading;
·The applicant’s directors, Ming On Lee and Amber Jui Chin Lien have another company known as Lee Tien Pty Ltd which has not been previously issued with an infringement notice or ordered by a court to pay a pecuniary penalty for contravention of a civil penalty provision under the Act. The infringement notice was paid promptly on 8 November 2016.
·The applicant accepts that this contravention is adverse information within the scope of regulations 1.13A, 1.1B and 5.19(3)(g)(ii), which affects its current nomination application.
[2] Dated 5 June 2020.
The applicant further submits that the matters relevant to whether it would be reasonable to disregard the above adverse information include the following:
·The applicant, Lee Tien Pty Ltd and their directors have been operating restaurant businesses in Australia for 15 years and have employed countless Australian citizens, permanent residents and temporary residents over those years.
·At the time of contravention, Lee Tien Pty Ltd had 30 employees with half of these employees being temporary residents. Of these, 16 temporary resident employees, only one (Mr Siak) was found to have had an issue with his visa status and work rights in Australia. This was due to a failure in the company’s internal management procedures regarding the verification of work rights.
·Mr Lee and Ms Lien were under immense pressure to maintain its manpower resources due to significant job growth.
·Mr Lee had contravened, and Ms Tien failed to take the necessary action to verify Mr Siak’s visa status prior to employing him given the need for Mr Siak to commence employment.
·When his employment commenced, Mr Siak advised Lee Tien Pty Ltd that he had a student visa which was to extend past 2016 but failed to advise that his visa had been cancelled. Lee Tien Pty Ltd was not aware that Mr Siak was an unlawful non-citizen until being notified by the Department.
·The applicant has accepted its responsibility for failing to verify Mr Siak’s visa status.
·Both the applicant and Lee Tien Pty Ltd have been long-standing subclass 457 visa approval sponsors since June 2013 (Lee Tien Pty Ltd) February 2014 (the applicant).
·The applicant has not been served with any prior infringement notice or court orders requiring the payment contravention of a civil penalty provision.
·Lee Tien Pty Ltd did not contest the infringement notice and acknowledged that it had contravened the relevant civil penalty.
·The incident for which the infringement notice was issued was the only time that the directors, the applicant and Lee Tien Pty Ltd have contravened any Australian law. Being a first-time offender and having taken into consideration the changes and improvements in internal policy and procedures which the directors have implemented to ensure similar incidents do not reoccur.
·The Department did not cancel Lee Tien Pty Ltd or the applicant’s standard business sponsorship and granted a subclass 457 visa to Lee Tien’s nominated employee on 22 December 2016 (which was after the infringement notice was issued).
In his oral evidence Mr Lee told the Tribunal that the infringement notice was imposed due to his failure to check on the visa status of an employee (Mr Siak) who had been employed by Lee Tien Pty Ltd in its Richmond restaurant for approximately 12 months. When he employed Mr Siak, Mr Lee checked on his visa status and was satisfied that Mr Siak held a valid student visa. During the course of Mr Siak’s employment, his visa expired but he did not advise Mr Lee that this had occurred and continued to work in the restaurant. Mr Lee acknowledged to the Tribunal that he had made a mistake in not continuing to check Mr Siak’s visa status and was surprised when Departmental officers visited the restaurant premises on 22 September 2016 and discovered that Mr Siak was employed there.
Following the issuing of the infringement notice, Mr Lee and Ms Tien had instituted changes in the employment practices for both the applicant and Lee Tien Pty and Mr Lee now makes monthly checks of the visa status of all employees who are not Australian citizens or permanent residents.
Since 2016 none of the three companies owned and operated by Mr Lee and Ms Tien have been the subject of a warning, infringement notice or other action by the Department.
The Tribunal questioned Mr Lee about whether the applicant or Lee Tien Pty Ltd had been the subject of a warning, infringement notice or any other action by the Department, prior to 2016. In response, Mr Lee explained that in 2013 Departmental officers had visited the Deer Park restaurant (operated by Lee Tien Pty Ltd) where they discovered five or six unlawful non-citizens working in the business. This was in the early stages of the establishment of the Deer Park restaurant[3].
[3] The site visit was made on 25 July 2013 and the warning notices were issued on 30 July 2013.
When questioned by the Tribunal about the positions held by the employees who did not hold visas, Mr Lee said that there were five employees – two kitchen hand, a cook and two waiters/waitresses.
Mr Lee conceded that when employing these workers, he had not been aware that they were unlawful non-citizens although he did not check on their status. He told the Tribunal that he had learned from his prior mistakes and now followed the advice given to him by Departmental officers when they interviewed him after the site visit on 22 September 2016. This advice included instruction on how to use the Department’s website to regularly check on the visa status of employees. Mr Lee now uses the website to make those checks on a monthly basis. When questioned by the Tribunal about whether he had been advised by Departmental officers about use of the website after the 2013 incident, he said he may have received this advice but could not recall. He had not used the Department’s website until after the 2016 incident.
Mr Lee further explained that although he had learned a lesson from the 2013 warning given to him by the Department, he did not really understand the importance of not employing illegal employees until after the infringement notice was issued in 2016. He has since realised that it is easy for him to check on the visa status of employees of the three companies owned and operated by himself and Ms Tien.
Following the hearing the applicant provided the Tribunal with further written submissions, which included the following:
·In 2013 Lee Tien Pty Ltd received a warning from the Immigration Department regarding the employment of unlawful workers.
·Mr Lee remembers that a warning was given but due to the length of time, neither he nor Ms Tien hold any paperwork relating to the incident. At that time Mr Lee and Ms Tien were not familiar with the intricacies of the visa and associated work rights regime in Australia and this was reflected in their hiring practices.
·For non- Australian citizens or permanent residents Mr Lee and Ms Tien made enquiries of them regarding their visa status and relied on the information given – rather than obtaining independent verification.
·Mr Lee and Ms Tien did not know about the VEVO system and were unaware they could have checked and verified the visa status of employees online with the Immigration Department. Further, a lot of overseas employees were introduced to Mr Lee by industry and social circles, which led him to assume that these employees could work in Australia.
·To Mr Lee’s recollection, the Immigration Department had considered a site visit and found five to six employees working at the Richmond restaurant without valid work rights. He could not remember whether they were holding visas, but they probably did not.
·The affected employees were working as kitchen hand/cooks and wait staff, all on a part-time basis. When they joined Lee Tien Pty Ltd, Mr Lee asked them about their visa status, to which they each claimed to be international students with work rights in Australia.
·This was not unusual for Mr Lee as he had employed international students before and was aware, they were permitted to work for 20 hours per week.
·Mr Lee asked for and received single-page documents from these employees with details of their studies and school name.
·It was only after the site visit and further counselling from an Immigration officer that Mr Lee realised that the documents, he had sighted were only course details and didn’t indicate whether the person held a valid visa.
·The Immigration officer showed Mr Lee what a visa grant letter looks like and thereafter he asked prospective employees to sight their visa grant letters before hiring them.
·After the 2013 incident, Mr Lee and Ms Tien checked the visa status of their prospective employees by sighting their visa grant letters. However, they failed to verify their visa status on a regular basis afterwards – as they assumed their visas would be valid for the entire period stated on the grant letters.
·Mr Lee and Ms Tien were not aware that visas could be cancelled on several grounds and thought that the visa grant letters provided sufficient evidence that the employees could work in Australia for the period of the visa.
·In 2016 the Immigration Department conducted another site visit[4] and found that the affected employee (Mr Siak) did not have a valid visa. Mr Siak was the holder of a student visa when he commenced his employment, but he ceased his enrolment midway through his course and his student visa was subsequently cancelled.
·Mr Lee and Ms Tien were unaware this had occurred and assumed Mr Siak was still on a student visa. When providing materials in support of a pending Subclass 457 visa a few months prior to the site visit, they named Mr Siak as a part-time employee. This may have triggered the site visit by Departmental officers as Mr Siak’s visa had already been cancelled at this stage.
·In the subsequent interview with Departmental officers, Mr Lee was advised about the use of the VEVO system. Since then, Mr Lee and Ms Tien have implemented processes to check the visa status of employees at least once a year. In reality, Ms Tien and her administrative staff have been checking the visa status of employees, once a month.
·With the processes and procedures implemented by Mr Lee and Ms Tien in the Chef Lagenda Group[5] in relation to the ongoing verification of employees’ visa status, it is highly unlikely that further incidents of employing overseas workers in breach of their visa or work rights would occur.
·Mr Lee and Ms Tien have acknowledged that they breached the relevant law by failing to do the proper checks and they were remiss in their management.
·Mr Lee and Ms Tien have made steps to improve their internal processes to minimise the likelihood of such contraventions happening in future and given this, it is reasonable to disregard this adverse information in accordance with r.5.19(3)(g)(ii) to allow the approval of the applicant’s nomination application.
[4] To the Deer Park restaurant.
[5] Straits Chef Pty Ltd, Lee Tien Pty Ltd and Abundent Consulting Pty Ltd.

On 21 September 2020 the Tribunal wrote to the applicant regarding information about two certificates issued pursuant to s.375A of the Act which has been placed on the Department’s file for the applicant. Copies of these certificates were attached to the Tribunal’s letter.
The Tribunal informed the applicant that the certificate issued on 8 September 2020 provides that a delegate of the Minister has determined that the disclosure, other than to the Tribunal of the ‘Site Visit Plan’ and “Use of Search Warrant Report’ would be contrary to the public interest because disclosure would be likely to prejudice the ongoing effectiveness of lawful methods for preventing and investigating breaches or evasions of the law.
The Tribunal further informed the applicant that the certificate issued on 16 September 2020 provides that a delegate of the Minister had determined that the disclosure, other than to the Tribunal, of the information contained in TRIM reference numbers ADD2018/3497384 and ADD2018/3497416 of file number BCC2017/1914123 would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal advised the applicant that it had formed the view that the certificates were validly made and gave the applicant until 5 October 2020 to make any submissions concerning the s.375A certificates, including but not limited to its validity.
In its letter of 21 September 2020, the Tribunal also invited the applicant (pursuant to s.359A of the Act), inviting it to comment on information which it considered would be the reason or part of the reason for affirming the decision under review. That information concerned the visits made by Compliance Field Victoria to the premises of Chef Lagenda in 2013 and 2016 when unlawful non-citizens were found on the premises together with warning notices and information regarding the use of the Department’s Visa Entitlement Verification Online (VEVO) system given to Mr Lee during the 2016 visit. The letter also advised the applicant about the relevance of this potentially ‘adverse’ information to its decision in relation to the applicant.
On 2 October 2020 the applicant provided the Tribunal with a written response to its s.359A invitation, constituted by a letter of support by Mr Lee and further submissions. The applicant did not provide the Tribunal with any comments regarding the two s.375A certificates.
The Tribunal notes that Mr Lee’s letter of support includes the following:
·He and Ms Tien were not professionals in migration and employment law and neither had a business degree or any formal training.
·When they started their business, they were ‘essentially muddling through” and learning how to operate a business in Australia.
·Their knowledge of business came from trial and error and when it came to employing people, they had a simplistic and somewhat naïve understanding of their obligations as employers.
·Prior to 2013 Mr Lee and Ms Tien did not turn their minds to confirming the visa status of the international workers they were employing and didn’t even know how to confirm this.
·Because they didn’t understand the complexity of the visa system, they relied on their employees to be truthful and accurate about whether they were permitted to work in Australia.
·This was a mistake and Mr Lee and his partner now realised that they should have previously one more to ascertain the work rights of their employees.
·When Immigration officers visited the Chef Lagenda restaurant, Mr Lee and Ms Tien were shocked and confused to discover that some of their employees were working unlawfully for the business and did not have Australian visas.
·As it was many years ago, neither Mr Lee nor Ms Tien could remember exactly how many workers were affected. Mr Lee remembered there were five to six but accepted the Tribunal’s information about six unlawful non-citizen workers holding student visas as they had previously shown Mr Lee documents that stated they were enrolled in courses. The case officer told them that these documents were not sufficient, and they should be asking for their visa details, rather than relying on school documentation, which could be faked.
·At that time, Mr Lee and Ms Tien weren’t aware of this and didn’t expect that people would take illegal action to work in Australia. When Departmental staff came back on a second occasion, they talked to Mr Lee about his responsibilities (along with those of Ms Tien) as employers, to ensure that their employees were permitted to work lawfully in Australia and checking their visa status.
·The Departmental case officer handed Mr Lee some papers as a warning, but he and Ms Tien lost the paperwork and therefore could not find them to confirm that there were six Illegal Worker Warning Notices referred to by the Tribunal. These were not six separate incidents and the warnings came out of the same visit. Mr Lee did not recall being taught how to use the VEVO system in 2013.
·The case officer might have provided Mr Lee with a handout on using the VEVO system but did not go through it in detail because Mr Lee is not “IT-savvy” and he was unaware in 2013 about the online system to check visa status of employees. Mr Lee remembered the case officer telling him to check visa grants instead of school enrolment letters and that subsequently became the business practice of Mr Lee and Ms Tien.
·They thought that provided they checked visa grants, their employees could work until their visas expired, so they didn’t undertake multiple checks to ascertain whether their workers’ visas were still valid. They were confident that all of their workers could work lawfully because they had checked their visa grants. When they applied for the subclass 457 visa for Mr Kook Siong Lee in May 2016, they provided organisational charts (including all employees) with full names and visa details to the Department. If they were employing workers unlawfully, they would not have told the Department their names.
·When the Departmental officers visited their Richmond branch and advised that there were unlawful workers employed by them, Mr Lee and Ms Tien were surprised. The case officer told them that checking visa grant letters did not count as checking visa status and that they had to check the VEVO system. This was the first time that Mr Lee had a clear impression of the online visa status checking system. This system was not explained to Mr Lee in detail and he did not recall the case officers guiding him on how to use this system in the 2013 incident.
·There was more detail provided in Mr Lee’s 2016 interactions with Immigration staff compared o 2013. He and Ms Tien felt more supported by the 2016 case officer in complying with their employer obligations. After the interview the case officer emailed Mr Lee information about how he and Ms Tien could register for and use the VEVO system. Ms Tien assisted their companies to register for VEVO accounts and she and Mr Lee have subsequently used the VEVO system, which they have found quite easy.
·Mr Lee has also spoken to his lawyer and together they have developed a set of procedures for checking the visa status of employees in each business operated by himself and Ms Tien.
·Due to her concerns about employing unlawful non-citizens, Ms Tien has checked the status of employees on the VEVO system every month. Since commencing the use of the VEVO system in 2016, Mr Lee and Ms Tien have had ongoing contact with their 2016 case officer who provided them with advice regarding migration issues for their employees. Apart from using the VEVO system, Mr Lee and Ms Tien’s business practices have changed in order to ensure they remained on top of their employees’ visa status. Their hiring practices have also changed. If a potential non-Australian employee does not consent to them checking their visa status via the VEVO system, they are not hired.
·Mr Lee and Ms Tien did not set out to deliberately contravene immigration legislation by hiring unlawful non-citizens. They were previously inexperienced and uneducated and did not know what they were doing. Since the issue with their Richmond branch in 2016, they took action to ensure that they do not “do the wrong thing” again by implementing a formal process to check the visa status of its employees. The events of 2013 and 2016 had taught Mr Lee and Ms Tien a valuable lesson and now seek the advice of their lawyers and accountants in relation to business matters where they lack knowledge.
·Mr Lee and Ms Tien have not been involved in any further contravention of the immigration laws since 2016 and are remorseful for what occurred in the past. They are confident that no similar contraventions will happen again in the future.
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 is satisfied, on the basis of material in the Department’s file, that the application was made on the approved form and accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The application identifies Mr Kok Wai Seow (the nominee) who, according to Departmental records, was granted a Subclass 457 visa on the basis of satisfying cl.457.223(4). The application identifies the occupation of Chef ANZSCO 351311. The Tribunal is satisfied that the position listed in the ANZSCO dictionary has the same 4-digit code as the occupation carried out by the nominee.
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 nominator was most recent period of approval as a standard business sponsor as between 18 February 2014 and 18 February 2017, for a period of three years. Departmental records indicate that the nominator was the sponsor who last identified the nominee, who is the relevant457 visa holder in a nomination made unders.140GB. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(b)(i) is met.
At the hearing Mr Lee gave evidence that the applicant is operating a restaurant business in Victoria. The business currently employs the nominee in the position of head Chef. The Tribunal has also had regard to the supporting material provided regarding the business’s operations, including company registration documents, recent business activity statements, financial reports, organisational chart, employment contract and wage records, and is satisfied, on the evidence, that the applicant is actively and lawfully operating a business in Australia.
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 Tribunal notes that the nominee commenced his employment with the applicant on a part-time basis on 4 November 2013 in the position of Chef and commenced employment on a full-time basis as its Head Chef on 1 August 2014 after his subclass 457 visa was granted on 21 July 2014. The nominee’s subclass 457 visa expired on 21 July 2018 and he has continued in the role of Head Chef (on a bridging visa) since that date.
Given the above information, the Tribunal is satisfied that the nominee was employed full time in Australia in the position for which he held a Subclass 457 visa for at least 2of the 3 years preceding the nomination application and 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 applicant has provided to the Tribunal a current contract of employment in respect of the nominee, dated 30 June 2020. The contract, which is expressed to come into operation when the nominee’s Subclass 186 visa is granted, sets out the terms and conditions of employment, provides a minimum term of three years employment from the date of the visa grant. The Tribunal is further satisfied that the terms of the nominee’s employment (including the employment contract) do not expressly preclude the possibility of an extension.
Employment records for the nominee indicate that the nominator has been paying the specified wages to the nominee throughout his employment in the position as the holder of a Subclass 457 visa. The most recent financial reports also indicate that the nominator is operating profitably. The evidence provided at hearing was that the COVID-19 pandemic has had some impact on the business due to the fact that the business was only able to provide take-away, and home delivered meals due to government restrictions. However, the applicant has continued to trade and intends to re-open its restaurant to eat-in diners when government restrictions permit.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not 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 employment contract indicates that the nominee’s salary (if the visa is granted) is proposed to be $181,480.00 plus 9.5% superannuation based on a minimum of 40 hours per week but provides that the nominee may be required to work reasonable additional hours of up to 60 hours per week from time to time, in light of business demands. There is no Australian citizen working at the same location as a Head Chef.
There are no equivalent employees within the workplace performing the same proposed occupation as the nominee. The Tribunal has had regard to Payscale.com which indicates that the median annual salary for a Head Chef is $64,327.00 with a salary range of $52,000.00 to $82,000.00.
The Tribunal has further consulted the Seek .com site which contains advertisements for the position of Chef with a stated range of between $52,000.000 and $120,000.00.
Having had regard to the terms and conditions of employment as set out in the employment contract, and in considering the evidence overall, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that are/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.
Having regard to the evidence before it, namely payroll expenditure and monies expended on training (which has been quantified with the provision of training receipts) the Tribunal is satisfied that the business has fulfilled its commitment relating to training requirements. Further to this, the business has complied with its training requirement obligations during the period of the most recent sponsorship approval, which as noted, was effective during the period 18 February 2014 to 18 February 2017.
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.
‘Adverse information’ is defined in regulation 1.13A as any adverse information relevant to a person’s suitability as an approved sponsor and includes information that:
(1)The person, or a person associated with the person:
(i)has been found guilty by a court of an offence under a Commonwealth, State or Terrritory law; or,
(ii)has, to the satisfaction of a competent authority, acted in contravention of a Commonwealth, State or Territory law; or
(iii)has been the subject of administrative action (including being issued with a warning) by a competent authority, for a possible contravention of a Commonwealth, State or Territory law; or
(iv)is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or
(v)has become insolvent with the meaning of the Bankruptcy and Corporation Law; or
(2)The laws mentioned in subparagraphs (1)(i) to (iv) relates to one or more of the following matters:
(i)discrimination;
(ii)immigration;
(iii)industrial relations;
(iv)occupational health and safety;
(v)people smuggling and related offences;
(vi)sexual slavery, sexual servitude and deceptive recruiting;
(vii)taxation;
(viii)terrorism; and
trafficking in persons and debt bondage.
(3)The conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency occurred within the previous 3 years.
Regulation 2.57(1) provides that a ‘competent authority’ means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
Despite the concessions made by the applicant, the Tribunal does not consider that the information regarding the warning and infringement notices issued by the Department constitute ‘adverse information’ for the purposes of r.1.13A.
As the applicable version of r.1.13A in this matter is the pre-18 March 2018 definition (as set out in paragraph 69 of this decision), the warning notices issued in 2013 and the fine issued in 2016 would arguably fall within r.1.13A(1)(f) , that is, Lee Tien Pty Ltd was the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of a law. As the information falls within the scope of r.1.13A(1)(f) it is subject to r.1.13(3). Regulation 1.13A(3) specifies that the conviction, contravention, administrative action, investigation or insolvency mentioned in paragraphs 1(d) to (h) must have occurred within the previous three years. However, as the Tribunal’s decision involves a time of decision assessment, the behaviour in question must have occurred within the previous three years prior to the date of the decision. Given both the warning and infringement notices occurred more than three years ago the information does not satisfy the definition in r.1.13A and is therefore not adverse information for the purpose of r.5.19(3)(g).

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 also no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with applicable workplace relations laws. The Tribunal is accordingly 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.
Amanda Mendes Da Costa
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 5850

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