Sushi Bay Pty Ltd (Migration)

[2021] AATA 967

Sushi Bay Pty Ltd (Migration) [2021] AATA 967 (15 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sushi Bay Pty Ltd

CASE NUMBER:  1816373

HOME AFFAIRS REFERENCE(S):          BCC2017/2186707

MEMBER:Michael Cooke

DATE:15 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 15 February 2021 at 3:29pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – financial capacity – provide employment on a full-time basis for at least 2 years – less than satisfactory record of compliance with workplace relations laws – management inadvertence – appropriate rectification of issues – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 May 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).

2. The applicant applied for approval on 21 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy Regulation 5.19(3)(d)(i) because delegate found the business has not demonstrated it had the financial capacity to provide two years full-time employment to a Café and Restaurant Manager with a salary of $54,000 per annum.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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)

8. 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.

   Findings and reasons in relation to whether r.5.19(3)(a) is met – ie whether the application:

   ·was made on the form 1395, or 1395 (Internet) for post 23 March 2013 applications, and accompanied by the fee prescribed in r.5.37;

   ·for applications made from 14 December 2015 – includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1);

   ·identifies a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4); and

   ·identifies an occupation in relation to the position that is listed in ANZSCO and has the same 4 digit code as the occupation carried out by the Subclass 457 visa holder.

9. The Tribunal is satisfied from the evidence before it that the requirement in r.5.19(3)(a) is met.

   Status of the nominator: r.5.19(3)(b)

10. 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.

11. The Tribunal finds that the nominator:

    ·is/was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act or under r.1.20G or 1.20GA (pre 14 September 2009); and

    ·is actively and lawfully operating a business in Australia; and

    ·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).

12. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

13. 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

14. The Tribunal finds, from evidence on the Departmental file, that the nominee has been employed full time in Australia in the position for which he holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application.

15. 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)

16. 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.

17. The Tribunal finds that this requirement applies in this case and will be employed on a full-time basis for at least 2 years; and the terms and conditions of the person’s employment will not expressly exclude the possibility of extending the period of employment.

18. 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)

19. 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.

20. The Tribunal finds that the terms and conditions of employment 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.

21. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

22. 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.

23. The Tribunal finds from the available evidence that during the period of the applicant’s most recent sponsorship approval the applicant fulfilled commitments made relating to meeting the training requirements during that period and the applicant complied with the applicable sponsorship obligations relating to the applicant’s training requirements during that period.

24. Accordingly, the requirement in r.5.19(3)(f) is met.

    No adverse information known to Immigration: r.5.19(3)(g)

25. 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. 

26. The Tribunal is aware of adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

27. The applicant’s representative has provided a submission which has given a comprehensive elaboration of the issue for the edification of the Tribunal.

28. Having read and digested the submission concerning the matter, the Tribunal finds that (under the circumstances outlined in the submission) it is reasonable to disregard that information.

29. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

30. 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.

31. The Tribunal observes that the term ‘satisfactory record’ is not defined in the Regulations. On its face it appears to be a subjective test that does not contemplate or require a perfect record of compliance. Dictionary definitions of ‘satisfactory’ vary from ‘fulfilling all demands or requirements’ to ‘acceptable, though not outstanding or perfect’. There is also some support in Departmental policy for such an approach.

32. While the policy is brief on the interpretation of what constitutes a ‘satisfactory record of compliance’, related guidance can be found in the context of the Subclass 888 Business Innovation and Investment visa and the very similarly worded cl 888.214 which requires the visa applicant to have a ‘satisfactory record’ of compliance with certain Australian laws.

33. In assessing that criterion, policy suggests a fair and reasonable approach in assessment of this criterion should be applied in all cases. It states that the requirement is not intended to be applied in every instance of a breach of Australian law and that ‘minor breaches’ of the law, or a single more serious breach, may be disregarded, especially if the applicant can demonstrate that the breach has been rectified and there has been no recurrence of the breach for a reasonable period.  The policy suggests some leniency may be appropriate in the first instance if it can be reasonably expected that the applicant may not have been fully aware of their Australian legal obligations…

34. The Tribunal finds evidence that nominator has had a less than satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. The applicant’s representative informs:

    We note that the adverse information relates to a decision of the Federal Circuit Court of Australia delivered on 28 June 2019 against Sushi Bay ACT Pty Ltd (“Sushi Bay ACT”) and Ms Rebecca Shin.

    We note that Ms Shin has been identified by the Department as a person associated with the Applicant given that she is the common director of Sushi Bay ACT and the Applicant. She has been found to have contravened provisions of the Fair Work Act 2009 for underpayment of wages and was fined the sum of $20,736.

    Ms Shin’s contraventions of the Act resulted from a number of Sushi Bay ACT’s employees being incorrectly categorised and classified under the Restaurant award, and Sushi Bay ACT’s failure to keep records.

    After being contacted by the Fair Work Ombudsman (“FWO”), Ms Shin provided all assistance and cooperation required by the FWO and used her best endeavours to rectify all contraventions identified by the FWO.

    The underpayments in the total sum of $18,671.57 was rectified on 24 October 2017 prior to the relevant court proceedings commenced by the FWO.

    Ms Shin made available to the branch manager of Sushi Bay ACT and the management team; a copy of the Findings of Contravention letter issued by the FWO dated 26 May 2017. This enabled all relevant management personnel to be corrected and educated on the workplace laws that Sushi Bay ACT had contravened at the time and to make sure that it does not occur again.

35. The applicant’s representative has outlined in depth the significant and comprehensive efforts made by the applicant to prevent any further occurrence of the issues which were the subject of Fair Work intervention and later Federal Circuit Court decision.

36. The Tribunal is of the view that the initial occurrence may have been a product of management inadvertence which, when discovered, has been rectified. Furthermore, the applicant has co-operated fully with the authorities in preventing any further occurrence. The Tribunal notes that not only has the applicant performed the appropriate rectification of issues but claims that:

    Following consideration of our Previous Submissions, the Department has subsequently granted two 482 nomination and two 186 nomination applications made by our client.

    Accordingly, we respectfully submit that it would be inconsistent and unfair should the Department decide to refuse this nomination application based on the identical adverse information.

37. The Tribunal is of the view that in the circumstances some leniency may be appropriate in this instance. It finds that a fair and reasonable approach in assessment of this criterion should be applied in this case.

38. Accordingly, the requirement in r.5.19(3)(h) is met.

39. 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

40. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Michael Cooke
    Senior 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.