Suri Trading Pty Ltd (Migration)

Suri Trading Pty Ltd (Migration) [2018] AATA 2127 (14 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Suri Trading Pty Ltd
CASE NUMBER:  1710819
DIBP REFERENCE(S):  BCC2016/3808974
MEMBER:Hugh Sanderson
DATE:14 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 June 2018 at 8:27am

CATCHWORDS
Migration – Nomination refusal – Temporary Residence Transition nomination stream – Nominated position – Accountant – Training benchmark achieved – Financial capacity to maintain the nominee’s employment – Complied with the commitments made for the approval of that sponsorship – Decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13A, 1.13B, 1.20DA, 2.59, 2.68, 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
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 9 May 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 14 November 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 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 delegate was not satisfied that the applicant had fulfilled the training requirements during the period of their most recent approval as a standard business sponsor.
Background
The applicant is a company trading as Pearl Beddings Australia. The applicant applied for approval as a Standard Business Sponsor (SBS) for the purpose of sponsoring Donghyun Lee for the position of an accountant. The applicant had previously been approved as an SBS on 2 September 2014 for a period of three years.
The applicant provided various documents in support of the application including the following:
·Business Activity Statements for the period from October 2015 to September 2016 showing total wages over that period of $280,078, together with superannuation of $26,607 having a total payroll of $306,685;
·Financial statement for the year ending June 2015; and
·Statement of the director of the business claiming to have spent $3,300 on training for the 12 months ending September 2016.
The delegate who considered the application noted the following issues:
·No quantifiable information was provided regarding payroll and training expenditure for the period 2 September 2014 until 2 September 2015 being the first year of the SBS;
·The financial statement provided by the applicant show wages and salaries expenditure of $284,694 and training expenditure of only $664 for the 12 months ending 30 June 2015, less than 1% of the payroll; and
·Insufficient information had been provided as to the payroll of the applicant over the period of the SBS or training expenditure over that period.
Based on these issues, the delegate was not satisfied that the applicant satisfied Training Benchmark B. There was no information that the applicant satisfied Training Benchmark A. As there was no information as to why it would be reasonable to disregard those requirements, the delegate found that the applicant did not meet the requirements in r.5.19(f) and refuse the application.
Information to the Tribunal
The Tribunal wrote to the applicant on 13 February 2018 requesting it provide updated and current information showing that it meets all criteria for approval of the SBS. The applicant provided much of the material that it had previously provided to the Department together with the financial statement for the year ending 30 June 2017.
Ms Kim for the applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Donghyun Lee. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was represented in relation to the review by its registered migration agent who attended the hearing.
Ms Kim said that training from UG Accountants was provided to their accounting staff so that they could understand what information was required to be given to them so that the Business Activity Statements could be prepared. She said the training from Forhim Technologies was to the sales team and to the accountants in respect of computer programs that Forhim Technologies had provided to the business for point of sale receipts to be issued.
Ms Kim emphasised that the training from UG Accountants was given to Mr Lee as he was the senior accountant and he had to attend all training. Ms Kim was unsure as to what other staff members attended training.
Mr Lee said that the training from UG accountants in 2017 was for the purpose of allowing all staff to understand changes within the GST system. He said the first day was for everybody and then the next day or two was just for himself and the other accounts staff.
Mr Lee said the training in 2014 was training in the use of MYOB and BAS bookkeeping systems. He said the training was provided by UG Accountants to the accounts team with the business. He was the main accountant and so he was involved in all the training as was the junior accountant. He could not recall the name of the junior accountant who attended that training, but believed that she was an Australian citizen.
After the hearing, the applicant provided a copy of a letter from the Department dated 6 April 2018 confirming their approval by the Department as a standard business sponsor effective from 6 April 2018 until 6 April 2023.
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.
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.
On the basis of the information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was provided in the application form.
The application for approval identifies Donghyun Lee who, according to Departmental records, was granted a Subclass 457 visa on 18 February 2014 that was granted to him on the basis of satisfying cl.457.223(4) of Schedule 2.
The occupation identified in the application form is Accountant (General) (ANZSCO 221111). The Tribunal is satisfied based on the employment documents for Mr Lee that the occupation identified is the same occupation is that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same four digit code (2211) as the occupation carried out by the nominee whilst he held a 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 applicant was the standard business sponsor who last identified Mr Lee in a nomination made under s.140GB of the Act. The applicant was not granted the most recent sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
The Tribunal is satisfied on the basis of the material before it, including business registration documents, company tax returns, business activity statements and other information provided in respect of the business activities of the applicant that the applicant is lawfully operating a business trading as Pearl Beddings 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 nomination application was lodged on 14 November 2016. The nominee was granted the Subclass 457 visa to work in the nominated occupation on 18 February 2014. The Tribunal has regard to the PAYG statements provided from the nominee. The Tribunal is satisfied that the nominee has been employed full-time by the applicant in the position in Australia as the holder of a Subclass 457 visa for at least two years in the three-year period immediately before this nomination application was made.
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 applicant has provided the financial statements for the years ending from June 2015 to June 2017. These indicated that the business has been able to increase both its gross and net profit over the period. The net asset position has also improved with the directors’ loan reducing over that period. Since filing the application, the applicant has continued to employ Mr Lee in the position as an accountant.
The director of the applicant attended the hearing and provided details of the trading activities of the business. The business trades primarily to Asian tourists. The business trades in both the retail and wholesale market. Information as to the planned future development of the business was provided. The director provided information as to the role of Mr Lee within the business.
On the totality of the information before it, the Tribunal finds the applicant has the financial capacity to maintain the nominee’s employment for at least two years in the same manner that they have employed the nominee since 2014. The applicant has provided a copy of the employment agreement between the applicant and the nominee dated 1 November 2016. This does not include a provision excluding the possibility of extending the period of employment. Although no updated agreement has been provided by the applicant, the Tribunal is satisfied based on the information provided by the director of the applicant at the hearing that it is the intention of the applicant to continue to employ Mr Lee for at least two years in the future.
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 agreement between the applicant and Mr Lee provides that he receives a base salary of $65,415 plus superannuation. The PAYG payment summary for Mr Lee for the year ending 30 June 2017 showed gross payments of $65,520. Although the employment agreement noted that there would be a salary review after six months and every 12 months thereafter, there is no information that the salary of Mr Lee has varied since 2016.
The applicant provided various documentation as to salaries of accountants. The Internet site, payscale.com, reports that an accountant’s income ranges from $41,000-$85,000 with the median salary being $55,730. Mr Lee is currently receiving slightly more than this.
The Tribunal is satisfied based on the information before it and the declared income of the nominee that the base salary is within the appropriate range of that normally paid to an accountant of comparable experience as the nominee.
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 basis of the Department’s decision was that the delegate was not satisfied that the applicant met the training commitments during the period of the applicant’s most recent approval as a standard business sponsor. In that decision, it was noted that the period of the applicant’s most recent approval as a standard business sponsor commenced on 2 September 2014.
The applicant provided various documents in respect of the training commitments made over the period of the approval of the standard business sponsor commencing on 2 September 2014. These documents tended to show that the applicant did spend in excess of 1% of the total payroll over the period of their approval as a standard business sponsor on training for staff. There were, however, questions as to whether the staff undertaking the training were Australian citizens or permanent residents.
The applicant is required to satisfy the criteria the time of the decision. Since the Department made their decision refusing the nomination application, the Department has given further approval to the applicant as a standard business sponsor. This approval was made on 6 April 2018. As this is the most recent approval as a standard business sponsor, the Tribunal is required to consider whether the applicant has fulfilled any commitments made in relation to that application. It is noted that in approving the applicant as a standard business sponsor on 6 April 2018 the Department would have accepted that the applicant had previously met all previous commitments made in respect of their prior approval as a standard business sponsor.
The applicant has not provided any information as to training that has taken place during the period of the applicant’s most recent sponsorship approval, which commenced on 6 April 2018. Since this approval has only recently taken place, this is not surprising. As the Tribunal is required to consider period of the most recent approval as a standard business sponsor, the Tribunal is required to consider the period from 6 April 2018. Based on the fact that the Tribunal must consider the period of the applicant’s most recent sponsorship approval and as this approval only commenced on 6 April 2018, the Tribunal is satisfied that the applicant has complied with the commitments made for the approval of that sponsorship.
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 any adverse information known to the Department about the applicant 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. Accordingly, the requirement in r.5.19(3)(h) is met.
Conclusion
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.
Hugh Sanderson
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.

[2018] AATA 2127

14 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness