The Trustee for GILL FAMILY TRUST (Migration)

[2018] AATA 1152

The Trustee for GILL FAMILY TRUST (Migration) [2018] AATA 1152 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for GILL FAMILY TRUST

CASE NUMBER:  1622184

DIBP REFERENCE(S):  BCC2016/480692

MEMBER:Mark Bishop

DATE:14 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 March 2018 at 4:24pm

CATCHWORDS
Migration – Employer Nomination – Financial statements – Wages and superannuation bills – Salary amount – Terms and conditions of employment – Previous attempts to fill position

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulation 1994, r 5.19, Schedule 2

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 13 December 2016 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 1 February 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the applicant provided insufficient, inadequate or non-current financial information. Accordingly the delegate found the nominator failed to demonstrate that the nominee would be employed on a full time basis in the position for at least 2 years.

5. The Tribunal decided the matter on the papers.

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 Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

9. Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.

10. The application was lodged with the prescribed form, did not include a written certification in relation to s.245AR(1) (receiving a benefit) and was accompanied by the prescribed fee.

11. The application was lodged on 1 February 2016. The nominator identified a need to employ a paid person in the position of Cook. The nominator provided an organisational chart and a statement that outlined the responsibilities of the Cook as reporting  directly to the Director  Mr Jagvir Gill

12. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

13. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

14. The nominator provided the following information:

    ·ASIC company details for The Chutney Bar Inverloch ABN 57 181 257 069 registered 15 July 2014 with a renewal date of 15 July 2020;

    ·Financial statements for the FY 2016 and 2017;

    ·BAS statements for the period October 2017 until September 2017;

    ·PAYG summary for nominee Mr Amandeep Bhandari;

    ·Superannuation statement for nominee Mr Amandeep Bhandari;

15. The nominator actively and lawfully operates a business in Australia and directly operates the business.

16. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

17. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator.

18. The nominator provided a copy of the organisational chart of the company that showed the position of Cook in a full time position filled by the nominee Mr Amandeep Bhandari reporting via the Restaurant Manager to the Director of the company.. The nominator provided a job description outlining the duties and tasks required to be carried out in the position. The nominator provided an employment agreement between the company and a Mr Amandeep Bhandhari dated and signed by both parties on 26 February 2018.The designated position was identified as being within the company.

19. Accordingly, the requirement in r.5.19(4)(c) is met

    Term of employment of the visa holder: r.5.19(4)(d)

20. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The nominator provided a statement that said the nominee had been employed with the Chutney Bar as a full time cook since November 2016 and the “business would support his nomination for a further 4 years. Appropriate supporting documentation relating to PAYG and superannuation was provided to the Tribunal. The cover sheet to the employment contract between the nominator and the nominee provided for employment tenure of 4 years with the option of renewal.

21. The Tribunal needs to be satisfied the business is able to operate sufficiently and can afford to pay the nominee.

22. The nominator provided the following information:

    ·BAS statements for the period October 2016 until September 2017. These documents showed sales for the period of $911,502 and salaries and wages as $78,103;

    ·Financial statements for the FY2016. The P&L statement showed a profit of $92,617 (cf: $33,792 for FY2015), wages paid of $249,776 (cf: $308,061 for FY2015) for the FY2016;

    ·Financial statements for the FY2017. The P&L statement showed a profit of $202,823 (cf: $92,617 for FY2016), wages paid of $246,446 (cf: $249,776 for FY2016) for the FY2016;

    ·The P & L statement for the FY 2016 showed an increase in income of $ 42,293 or 7% on the previous year. The P & L statement for the FY2017 showed an increase in income of $144,850 or 22.2% on the previous FY;

    ·The P & L statement for the FY 2015 showed wages and superannuation payments of $337,327. The P & L statements for the FY 2016 showed wages and superannuation payments of $273,505.The P & L statement for the FY 2017 showed wages and superannuation payments of $269,759;

    ·A signed statement dated 26 February 2018 on the letter head of LDB Accountants and Advisors that stated the Gill Family Trust had a net profit of $202,823 for the FY2017. The statement went onto say

    o   The Gill Family Trust is in a financial position to support the proposed number of applications for a temporary visa entrant;

    o   The Gill Family Trust has no issues with meeting the employment requirements for a temporary employee.

    ·The above financial statements were prepared by LDB Accountants and Advisors and signed;

    ·PAYG payment summary for the nominee for the FY2017 showing gross payments of $38,349 and tax withheld of $5,575;

    ·Superannuation statements from HOSTPLUS in the name of the nominee showing compulsory superannuation payments of $5,874 for the FY2017. This figure represents the mandatory contribution made by employers in Australia as mandated by law; 

23. The Tribunal has assessed all the information outlined in paragraph 22 above. The Tribunal finds as follows:

    ·Since 2015 the company has been growing, it has become more profitable, the rate of profit growth has increased, its wages and superannuation bill has remained relatively flat  and as a percentage of income it has decreased significantly and its expenses have grown at a significantly lesser rate than its income ;

    ·The company has complied with relevant legal obligations concerning payment of wages, superannuation and tax remittances;

    ·The company has been well able to pay nominated wages and salary to the nominee since employment commenced with the company in November 2016;

    ·The company has the capacity to pay nominated wages and superannuation to additional 1 or 2 employees for the next 2 years.

24. The Tribunal is satisfied the business can afford to pay a salary of $59,130 to employ one full-time cook or $118,260 to employ two full-time cooks.

25. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

26. Regulation 5.19(4)(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.

27. The nominator provided the following information;

    ·Extract from LiveSalary that showed the median base salary for a cook to be $49,250 as at November 2017;

    ·Extract from Open Universities that showed an average salary for cooks of $52,000 as at October 2017;

    ·Extract from Seek that showed the salary for cooks in regional Victoria of $55,000 as at October 2017.

    ·The nominator provided statements to the Department and the Tribunal that outlined the opening of the enterprise in 2011, the growth until 2015, the continuing growth from 2015 until the present time, the limited staffing levels at November 2015 of a restaurant manager and head chef, the need to employ an extra two cooks, the advertising of vacant positions and inadequate response because of the need to cater to Indian cuisine and a commitment to abide by relevant terms and conditions as set out by immigration;

    ·PAYG payment summary and superannuation statements for the nominee for his period of employment.

28. The Tribunal is satisfied the salary amount, terms and conditions paid to the nominee are no less favourable than those that would be provided to an Australian citizen or permanent resident performing the same work in the same work place in Tasmania 

29. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

30. Regulation 5.19(4)(f) 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. 

31. There was no evidence before the Tribunal concerning adverse information known to Immigration about the nomination or the person associated with the nominator.

32. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

33. Regulation 5.19(4)(g) requires 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.

34. There was no evidence before the Tribunal that suggests the applicant does not have a satisfactory record of compliance with workplace relations of the Commonwealth and the State of Victoria.

35. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

36. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI) the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

37. The Tribunal determines as follows:

    ·The position and business is located in Inverloch, Victoria. Instrument IMMI 17/059 specifies what is considered regional Australia and it includes the postcode 3996. The postcode of Inverloch Vic is 3996.

    ·The nominator provided a “genuine position statement” that addressed the background, development and growth of The Chutney Bar, Inverloch. The statement addressed the following matters:

    oBackground of the business since 2009. It was and is the only restaurant which offers authentic Indian cuisine in Inverloch;

    oThe use of local produce and engagement with local suppliers;

    oThe genuine need for the position as the business has grown strongly in recent years, the advertising of the position, and the fact that most of the applicants for the job did not have experience or skills to meet the demands of the restaurant;

    oThe genuine need for the position and identification of duties for the nominee Mr Amandeep Bhandari.

    ·The nominator advised it had advertised the position of Cook and provided copies of relevant detail. The nominator advised the nominee had commenced in the position in November 2016 and was still in the position. The nominator outlined particular demands in the job and the particular skills the nominee brought to the job that aims to satisfy very specific demand in a growing market. The nominator provided proof it had attempted to fil the position without success. The Tribunal is satisfied there are no other relevant people in the particular location that can fill the position.

    ·The nominator provide a detailed position description of the duties of the Cook position within the company that included addressing issues of food and labour cost, minimisation of wastage, co-ordination of activities with other staff, maintenance of kitchen equipment, staff training and adherence to work, safety and hygiene standards.

    ·IMMI 17/058 provides that the position o Cook is a specified occupation for the purposes of r.5.19(40(h)(ii)(D). Cook with ANZSCO code 351411 may be found in Schedule 1 of that instrument. The Tribunal has examined the ANZSCO description of a Cook. The Tribunal is satisfied the information provided by the nominator to the Tribunal (as discussed immediately above) shows the tasks allocated to the nominated position correspond to the tasks of a Cook.

    • The nominator provided a signed Regional Certifying Body Advice Certificate from the Department of Economic Development, Jobs, Transport and Resources, Gippsland Regional Office. Instrument 17/059 lists the Department of Economic Development as the relevant certifying body for Victoria.

    ·The Advice Certificate from the Department of Economic Development includes advice on the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). The Advice Certificate addresses the following detail:

    o   the terms and conditions of employment will be no less favourable than those provided to an Australian citizen/permanent resident performing equivalent work in same workplace at the same location;

    o   there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and

    o   the position cannot be filled by an Australian citizen/permanent resident who is living in the same local area as that place.

    ·Accordingly the requirements of r.5.19(4)(h) are met.

    CONCLUDING PARAGRAPHS

38. 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

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

    Mark Bishop
    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.

    …

    Direct Entry nomination

    (4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’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)       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

    (g)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; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).