The Trustee For GNH Harmony Family Trust (Migration)
[2019] AATA 443
•20 February 2019
The Trustee For GNH Harmony Family Trust (Migration) [2019] AATA 443 (20 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: The Trustee For GNH Harmony Family Trust
CASE NUMBER: 1702547
DIBP REFERENCE(S): BCC2016/2406805
MEMBER:Ian Berry
DATE:20 February 2019
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 22 February 2019 at 9:24am
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination – Chef ANZSCO 351311 – ability to sustain employment for at least two years – previous financial losses due to establishment costs – Evidence of subsequent profit – Decision under review set asideLEGISLATION
Migration Act 1958 s 245AR(1)
Migration Regulations 1994, Schedule 2, r 5.19(3)(d)(ii)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 30 January 2017 to refuse the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (Regulations).
The applicant (GNH Harmony) applied for approval on 19 July 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, GNH Harmony 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 GNH Harmony’s nomination did not satisfy r.5.19(3)(d)(ii) of the Regulations because GNH Harmony sustained losses in the financial years ending 30 June 2015 and 30 June 2016 aggregated at $39,772 and therefore could not sustain the employment of the nominee for a period of at least two years.
GNH Harmony appeared before the Tribunal on 20 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Gu, the sole director and shareholder of GNH Harmony in its capacity as trustee. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
GNH Harmony was represented in relation to the review by its registered migration agent.
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 GNH Harmony 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.
The Tribunal is satisfied on the material in the Department’s file that the application was made in accordance with the approved form and accompanied by the prescribed fee. Ms Gu with frankness confirmed not receiving monies by sponsoring the nominee and the Tribunal accepts her statement as being truthful. The Departmental file is provided to the tribunal including the application for employer nomination for a permanent appointment made on 19 July 2016 which did contain a certification by GNH Harmony it has not engaged in conduct in relation to this nomination that constitutes a contravention of s.245AR(1) of the Act.
GNH Harmony identified Yunjun Kim (Mr Kim) as the holder of a UC-457 visa, for the nominated position of Chef ANZSCO 351311. Mr Kim had previously been granted a UC 457 visa with a previous employer where GNH Harmony was in a partnership in a Japanese restaurant in Coorparoo, Brisbane. The partnership ceased with GNH Harmony establishing a Japanese restaurant in Graceville. Ms Gu confirmed that to she approached Mr Kim who agreed to work in GNH Harmony’s restaurant. She assured the Tribunal that there was no gap between his ceasing employment with one employer and commencing with the GNH Harmony. The Tribunal accepted her evidence which was corroborated by other documentary evidence.
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 indicate that GNH Harmony, at the relevant time, was a standard business sponsor who last identified Mr Kim as the holder of the subclass 457 visa in the nomination made by GNH Harmony. The Japanese restaurant business operated by GNH Harmony is both 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 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 evidence before the Tribunal, including Departmental records and employment documents, indicates Mr Kim held his 457 visa, on and from 17 July 2014 for a period of over four years and he had been employed on a full-time basis by GNH Harmony as a Chef during that time.
The Tribunal is satisfied that Mr Kim has been employed on a full time basis in Australia in the position of Chef for at least two of the three years immediately before the nomination application. While holding a 457 visa, Mr Kim was employed with GNH Harmony, from 17 July 2014 to 19 July 2016 (the date of making the nomination application).
The Department’s delegate refused the nomination application on the basis that GNH Harmony had an aggregating loss for the fiscal years ending 30 June 2015 and 30 June 2016. That loss totalled $39,772. Ms Gu explained as to the business starting in late 2013 and there were establishment costs which needed to be paid including a substantial number of upfront costs including leasing, leasing bonds, as well as other factors in a newly established business such as attracting custom as well as local recognition. She explained as to GNH Harmony having a business plan and of objectively considering their market position and adjusting it with the assistance of the identified nominee Mr Kim. It involved one aspect of balancing the quality of the food and the cost of the dishes offered to the custom of its diners. GNH Harmony does very little in the way of takeaway food sales which is estimated at about 10% of its gross profit. By far, the majority of profit is from regular dine-in patrons.
GNH Harmony has adjusted its opening hours and opening days of the week, to take advantage of the dining habits of the patrons in the area. With those adjustments, GNH Harmony is able to adjust its staff requirements to be more effective.
Given the desire to make the business profitable, GNH Harmony has been able to return profits for the years ending 30 June 2017 and 30 June 2018. Respectively for those fiscal years, the business has profits of $41,043 and $47,144.
Having regard to the experience of Ms Gu running Japanese restaurants, the adjustment GNH Harmony has made to the business, it has become more effective and efficient thus resulting in profits.
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.
Mr Kim has been employed by the nominator since 17 July 2014, including on a full-time basis since his 457 visa was granted on 17 July 2014[1].
[1] Tribunal File folio 99 – 100.
The Tribunal has had regard to the evidence provided to it, including Mr Kim’s PAYG statements, employment history and to the terms and conditions of his employment as set out in the most recent employment contract dated 22 June 2018 and the previous employment agreement made on 15 July 2016. The most recent employment agreement has GNH Harmony employee Mr Kim for at least five years. He will be employed on a full-time basis for that time and the terms and conditions of Mr Kim’s employment agreement has not expressly exclude the possibility of extending the period of employment beyond five years.
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 dated 22 June 2018 relating to the identified nominee Mr Kim indicates his current base salary of $56,600 per annum plus superannuation.
The Tribunal considered the terms and conditions of employment as set out in that employment agreement and considers that it is not less advantageous to that of an Australian citizen employed in the same position.
The Tribunal is satisfied on the evidence that the terms and conditions applicable to the position of Chef will be no less favourable than those that 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 GNH Harmony 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 Departmental file does not make a finding or an opinion that GNH Harmony has not complied with the benchmark criteria. Notwithstanding, Ms Gu confirmed that GNH Harmony had complied and the evidence on the Tribunal file states that GNH Harmony became the sponsor of the 457 visa holder on 17 July 2014. The profit and loss statement of GNH Harmony states that its salaries and wages component of the expenditure in financial statement for the fiscal year ending 30 June 2014 was $95,498. Benchmark B requires GNH Harmony to pay $954.98 per year. GNH Harmony provided evidence that the payroll for the fiscal year ending 30 June 2015 was $167,974. For the fiscal year ending 30 June 2016 was $162,168 and for the fiscal year ending 30 June 2017 was $175,260. Therefore, The Benchmark B for those respective years would be $1679.74, $1621.68 and $1752.60.
Maple Learning Services provided training (on 21 October 2015) to Australian citizen Mr Jamie Kim employed by GNH Harmony in the food safety and communication skills $1680.
Maple Learning Services provided training (on 1 September 2016) in health and safety incident management and communication skills to Australian citizen Mr Matthew Forbes in the amount of $1738.
Maple Learning Services provided training (on 1 September 2017) to Ms Adelaide Pope who was an Australian citizen in food services and continuous improvement and paid $1760 for that service.
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.
Ms Gu gave evidence at the hearing that there is nothing adverse and on about the nominator or any person associated with the nominator. There is also no evidence before the Tribunal to suggest that GNH Harmony does not have a satisfactory record of compliance with the immigration laws of Australia.
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 GNH Harmony to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which GNH Harmony operates a business and employs employees in the business, relating to workplace relations.
Ms Gu gave evidence at the hearing that GNH Harmony had complied with all relevant workplace relations laws. There is not any evidence before the Tribunal to suggest that GNH Harmony does not have a satisfactory record of compliance with workplace relations laws in the location in which GNH Harmony operates a business and employs staff.
Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that GNH Harmony 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.
Ian Berry
MemberATTACHMENT - 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 GNH Harmony operates a business and employs employees in the business, relating to workplace relations.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Statutory Construction
-
Procedural Fairness
-
Standing
0
0
0