The Trustee For Brar Family Trust (Migration)

[2019] AATA 6450

The Trustee For Brar Family Trust (Migration) [2019] AATA 6450 (16 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Brar Family Trust

CASE NUMBER:  1705037

DIBP REFERENCE(S):  BCC2016/2880018

MEMBER:George Hallwood

DATE:16 December 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 16 December 2019 at 4:03pm

CATCHWORDS
MIGRATION –  nomination refusal–Temporary Residence Transition nomination stream – sponsorship approval – actively and lawfully operating a business in Australia – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 5.19, 5.37, cl 457.223

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 Immigration on 24 February 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).

2. The applicant applied for approval on 30 August 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).

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. This stream is designed for Subclass 457 visa holders who have worked for their employer for two years, and that employer has offered them a permanent position in the same occupation.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) of the Regulations because information was not provided that would satisfy the delegate regulations 5.19(3)(c), 5.19(3)(d), 5.19(3)(e) were met.

5.    Mr Kuldeep Singh Jodha, trustee of The Trustee for the Brar Family Trust (Brar Family Trust), appeared before the Tribunal on behalf of the applicant on 12 December 2019 to give evidence and present arguments. The hearing was combined with the hearing for the related nominee – case file number 1708359 and the Tribunal also received oral evidence Mrs Jasveer Kaur Sidhu, the primary subclass 186 visa nominee, and Mr Amrinder Singh Cheema – the husband of the primary visa nominee.  

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

7.    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

8. 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)

9. 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.

10. I have had regard to the material provided and oral evidence and I am satisfied that the application was compliant with the process set out in r.5.19(3)(a) as the application:

·was made on the correct form and accompanied by the fee prescribed in r.5.37;

·includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1);

·identifies a person, Jasveer Kaur Sidhu who held a Subclass 457 visa during the period 23 September 2013 until 23 September 2016 and granted on the basis of satisfying cl.457.223(4); and

·identifies an occupation “Café or Restaurant Manager” in relation to the position “Restaurant Manager” that is listed in ANZSCO and has the same 4 digit code - 1411 as the occupation carried out by the Subclass 457 visa holder.

11. Given the above findings, the requirement in r.5.19(3)(a) is met.

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

12.      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.

13.      The applicant’s name has changed from “Trustee for the Brar Family Trust” at the time of application to “Kuldeep Singh Jodha as Trustee for the Brar Family Trust” currently. The Tribunal is satisfied from the information provided and in particular Australian Securities and Investments Commission (ASIC) records  that despite the changes to the identity of the trustee, the nominating entity (i.e. ‘The Trustee for Brar Family Trust’) and its ABN (96 773 368 244) has remained the same.

14.      The applicant previously operated the Curry Point Restaurant from April 2014 until October 2017and since October 2017 operates the Indian Garden restaurant in North Perth.

15.      The Indian Garden restaurant is a licenced restaurant with a seating capacity of about 70 people, and employs three full time staff and three part time staff. The applicant’s 2018 / 2019 turnover was $367,025 with a net profit from ordinary activities before tax of $30,653.20.  Mr Jodha stated that he is keen to build the business and the restaurant is now open at lunchtime on weekdays to cater for nearby offices. The restaurant is now open seven days a week whereas it only opened six days a week previously.

16.      The Tribunal considered the claims and evidence presented in relation to the status of the applicant and in particular:

·A Notice of Decision – Sponsorship Approval Notice dated 9 July 2014 and departmental records were provided to the Tribunal demonstrating that the applicant was an approved standard business sponsor for a year from 9 July 2014 to 9 July 2015; and

·Departmental records indicate the applicant was approved as, and is currently,  a standard business sponsor from 27 November 2019 for a period of five years until 27 November 2024; and

·The applicant last identified the holder of the Subclass 457 visa, Ms Sidhu, in a nomination made under s.140GB of the Act; and

·Oral evidence at the hearing, financial statements and electronic lodgements with the Australian Taxation Office (ATO) for the years 2015 to 2018, and ASIC records provided to the Tribunal demonstrate the business has been, and is currently, actively and lawfully operating a business in Australia; and

·Mr Jodha stated that the business only operates in Australia; and

·Departmental records demonstrate that the applicant 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).

17.      I am satisfied that the applicant was the relevant standard business sponsor who is actively and lawfully operating a business in Australia and that they did not meet the relevant criteria relating to overseas operations in the most recent sponsorship approval.

18. Given the above, I am satisfied the requirement in r.5.19(3)(b) is met.

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

19. 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 she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

·     the nominee held a Subclass 457 visa on the basis that she 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.

20. I note that the provisions of r.5.19(3)(c)(ii) relate to certain independent contractors holding subclass 457 visas and are not relevant to this case.

21.      The nomination was made on 30 August 2016 so the Tribunal must be satisfied that the nominee, Ms Sidhu, has been employed full time in Australia in the position for which she holds a subclass 457 visa for at least two of the three years preceding the nomination application.

22.      Ms Sidhu was granted a subclass 457 visa in September 2013 and commenced working as a Restaurant Manager with Gates to India restaurant on 23 September 2013. She ceased working with Gates to India in June 2014 and sought employment as a Restaurant Manager elsewhere.

23.      Evidence provided orally and in writing and in particular a contract of employment dated 25 June 2014, and a statutory declaration from Ms Sidhu dated 14 November 2019 confirms:

·     Brar Family Trust was established on 23 May 2013 and various trustees have been appointed between then and now although the nominating entity has remained the same.

·     The applicant has operated restaurant businesses initially Curry Point Restaurant from April 2014 until October 2017 and subsequently Indian Garden Restaurant from October 2017 to date.

·     Ms Sidhu has worked as a full time Restaurant Manager, the position for which she was granted a subclass 457 visa, for the applicant since 29 July 2014.

·     The position as described in writing in the job description and as described verbally by Ms Sidhu and Mr Jodha closely aligns with the ANZSCO description of Café or Restaurant Manager that was the subject of the relevant subclass 457 application.

·     The period between 29 July 2014 and the nomination date of 30 August 2016 is greater than two years.

24.      I am satisfied based on the evidence provided that Ms Sidhu was employed full time in Australia in the position for which she held her subclass 457 visa for more than two of the three years preceding the applicant’s nomination.

25. 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)

26. 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.

27.      Oral and documentary evidence, in particular the written submissions, contract of employment and financial records confirm:

·The nominee, Ms Sidhu, will continue to be employed on a full time basis for at least two years

·the applicant’s recent financial records demonstrate a capacity to employ Ms Sidhu as a Restaurant Manager for the next two years

·There is no condition in Ms Sidhu’s contract of employment excluding the possibility of extending the period of employment

·A letter of appointment dated 28 August 2016 continues Ms Sidhu’s employment as a restaurant Manager (ANZSCO: 141111) “for at least a term of two (2) years from the date your permanent resident visa is gratnted…”

·Mr Jodha for the applicant confirmed that the applicant intends to continue to employ Ms Sidhu full time as Restaurant Manager for at least two years from the date Ms Sidhu’s permanent resident visa is granted.

28.      Having considered the evidence I am satisfied that the applicant has the capacity and intent to continue to employ Ms Sidhu on a full time basis as a Restaurant Manager for at least two years.

29. 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)

30.      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.

31.      Oral and documentary evidence, in particular the written submissions, organisation chart, contract of employment, job advertisements and financial records confirm:

·There is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

·That the 28 August 2016 letter of agreement / contract of employment is current and Ms Sidhu’s base salary is $55,000 plus 9.5% superannuation.

·That the terms and conditions of employment provided to Ms Sidhu, when compared with advertisements for similar positions in the Perth metropolitan area, are market rate, within the range of market rate salaries and conditions.

32.      I am satisfied that the terms and conditions of employment applicable to the nominated position are no less favourable than those that are provided to an Australian citizen or permanent resident performing the same work in the same workplace at the same location.

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

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

34.      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.

35.      The applicant was most recently approved as a standard business sponsor on 27 November 2019 for a period of 5 years. At the time of the most recent sponsorship approval did not include any training commitment for the applicant.

36.      The standard business sponsorship approval criteria which required sponsoring businesses to commit to meeting training obligations in relation to Australian citizens and permanent resident employees was repealed by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. The effect of these regulations is that the repealed criteria no longer apply to live applications for approval as a standard business sponsor from 18 March 2018.

37.      For this reason I am satisfied the applicant met its training commitments and applicable obligations.

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

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

39.      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. 

40.      The Tribunal has considered the information provided by the Department. Nothing in the information before the Tribunal indicates that adverse information is known to Immigration about the applicant or an associated person.

41.      I note that the Department approved the applicant as a standard business sponsor on 27 November 2019 for a period of 5 years.

42.      For these reasons I am satisfied that there is no adverse information known to Immigration about the applicant or an associated person.

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

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

44.      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.

45.      Mr Jodha for the applicant testified that the applicant has complied with all applicable workplace relations laws. Ms Sidhu corroborated this evidence.

46.      There is no evidence before the Tribunal that contradicts these submissions.

47.      For this reason I find that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

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

   CONCLUDING PARAGRAPH

   49. 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

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

   George Hallwood
   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.