The Trustee for SM & SJ Family Discretionary Trust (Migration)

[2019] AATA 6000

The Trustee for SM & SJ Family Discretionary Trust (Migration) [2019] AATA 6000 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for SM & SJ Family Discretionary Trust

CASE NUMBER:  1719279

DIBP REFERENCE(S):  BCC2016/3977235

MEMBER:Phoebe Dunn

DATE:17 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 17 September 2019 at 9:11am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Cook – training requirements – evidence of payment of training costs provided – Training Benchmark B met – nominee worked full time in position for at least two years – financial capacity to employ nominee for at least two years – decision under review set aside

LEGISLATION
Fair Work Act 2009 (Cth)
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 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 Immigration on 7 August 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 25 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).

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 r.5.19(3)(f)(i) of the Regulations because the applicant failed to provide evidence to demonstrate that it had complied with its training requirements during the period of its most recent standard business sponsorship (7 June 2012 to 7 June 2015), and further that it was not reasonable to disregard that failure under r.5.19(3)(f)(ii).

5. The applicant, represented by Mr Annesly Tisseverasinghe, appeared before the Tribunal by telephone on 22 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence in person from Mrs Pooja Handuja, the nominee, whose related Subclass 186 visa application was heard at the same time.

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

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) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation.

10. Based on the information on the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee and written certification.

11. The application for approval identifies Mrs Pooja Handuja, the nominee, who, according to Departmental records held a Subclass 457 visa from 30 October 2014.

12. The occupation identified in the application is that of ‘Cook’ (ANZSCO 351411).  The Tribunal is satisfied based on the employment documents for the nominee that the occupation identified is the same occupation carried out by the nominee as the holder of a Subclass 457 visa. 

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

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

14. 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.

15. Departmental records show that the applicant’s most recent approval as a standard business sponsor was on 7 June 2012 for a period of three years.

16. At the hearing, the applicant gave evidence about the nature of the business and its operations. The applicant runs a supported residential aged care facility for chronically mentally ill residents, some of whom do not have other homes or families.  The facility has 40 beds, and works closely with the local public hospitals and the council to provide care to the residents.  The applicant stated that the nominee started working for the business at the end of 2011, initially in a personal care role, while she was undertaking her Certificate IV in Hospitality (Commercial Cookery).  When he advertised for the role of cook, she applied.  The applicant noted that they had tried to train a number of other people for the role, but they could not relate to the patients, so did not continue.  The applicant noted that the nominee also has a certificate level qualification in aged care, and understands the particular needs of the residents of the facility.  As such, the applicant noted that the nominee assists in supporting the provision of a stable environment for the residents.

17. The applicant gave evidence that the nominee works closely with the doctors and nursing staff in designing menus to suit the needs of patients with chronic mental health and addiction issues, with a particular focus on nutrition as an important component of a treatment plan.  The applicant noted that the nominee has been a major asset for the business, providing stability in her role as a cook, as well as utilising her understanding of the complexities of the residents and their specific needs in performing her role.

18. The Tribunal has had regard to ASIC documentation, which confirms that the business was registered on 26 June 2005 and is actively operating.  The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA or r.2.59(h).

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

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

20. 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 two of the three 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 two years in the three years immediately before the application.

21. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee commenced work with the applicant in July 2011 and successfully completed a Certificate IV in Hospitality (Commercial Cookery) at the Victorian Institute of Technology Pty Ltd between 27 August 2012 and 25 February 2013. The nominee was granted a Subclass 457 visa on 30 October 2014 to work as a ‘Cook’ (ANZSCO 351411), and this nomination application was lodged on 25 November 2016. The Tribunal is satisfied that the nominee has worked for the applicant full time in the position of ‘Cook’ for at least two years in the three years immediately before the application.

22. The Tribunal has considered documentary evidence, including the nominee’s current and previous employment contracts and position descriptions; the nominee’s lodged tax returns and notices of assessment since 2013, bank account statements and superannuation statements.  The Tribunal has also considered oral evidence at the hearing from the applicant and the nominee, and is satisfied that the position carried out by the nominee is that of a Cook.

23. 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)

24. 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.

25. Evidence before the Tribunal includes the most recent signed employment contract in respect of the nominee dated 22 November 2016 outlining the current terms and conditions of employment, and providing for a minimum of two years of employment from the date of signing, with an option to extend after that period. The applicant has also provided copies of the nominee’s tax returns since 2013, which indicate that the nominee’s base salary is $53,900 per annum plus superannuation at the current legislated rate.

26. At the hearing, the applicant gave oral evidence about the nominee’s value to the business, noting in particular her understanding of the complex and specific treatment needs of the residents at the facility, and that she works closely with the medical staff to ensure the residents’ diets are aligned to their treatment needs. The applicant noted the importance of staff stability and that he is keen to keep her on as an employee for at least two years, if the nominee is granted a Subclass 186 visa.   

27. The Tribunal has had regard to the applicant’s financial capacity to employ the nominee for a period of at least two years. The Tribunal has considered updated financial records, including the FY 2019 business activity statements and FY 2018 trust tax return, together with oral evidence at the hearing and is satisfied that the applicant can support the employment of the nominee for at least two years.

28. 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)

29. 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.

30. At the hearing the applicant advised that there are currently eight people working in the business, most of whom are part time (with the exception of the nominee) and noted that there are no other Australian employees working in a role similar to the nominee.  The applicant has provided documentary evidence of the terms and conditions of two part time employees in the personal care team.  The Tribunal has had regard to the contract of the nominee and the Tribunal is satisfied that the terms and conditions of the nominee are no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the same conditions, and is in accordance with the Fair Work Act 2009. 

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

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

32. 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.

33. The Tribunal notes that the application was refused by a delegate of the Minister on the basis of failure to substantiate compliance with the training benchmark requirements and obligations contained in r.5.19(3)(f). At the hearing, the Tribunal focused on establishing compliance with these requirements, with particular reference to the missing documentation noted in the delegate’s decision at first instance. In this instance, the applicant is seeking to establish compliance with Training Benchmark B.

34. The Tribunal notes that, based on the tax returns for the Trust for the years 2012, 2013 and 2014, the payroll of the business for the relevant years of the standard business sponsorship was: year 1 $279,614, equating to a requirement to spend at least $2,796.14 under Training Benchmark B and in year 2 $299,935, equating to a requirement to spend at least $2,999.35.  In year 3, it was $306,024, equating to a requirement to spend at least $3,060.24 on training Australian citizens and permanent residents under Training Benchmark B.

35. The Tribunal notes the following payments made in respect of training in the relevant years of the standard business sponsorship:

    a.Year 1 - $3,300 - Yum Productions, paid on 3 June 2013;

    b.Year 2 - $1,479.50 - Smarter Business Training, invoice dated 19 May 2014;

    c.Year 2 - $2,800 – PD Training, invoice and receipt dated 20 May 2014;

    d.Year 3 - $4,015 – Yum Productions, invoice and receipt dated 15 June 2015.

36. The Tribunal also notes that the applicant made further payments to Yum Productions in 2016 of $2,508 on 9 June 2016 and $1,743.50 on 3 June 2016, outside of the relevant years of the standard business sponsorship.

37. The Tribunal has also had regard to a letter received from Yum Productions Pty Ltd, confirming the amounts paid to it in respect of training by the applicant, together with a letter from the applicant’s accountant confirming the amounts paid for training for the years from 2012 to 2016 inclusive.

38. The Tribunal accepts that the training referenced in paragraph 35 meets the requirements of Training Benchmark B under IMMI 13/030 in that the training in respect of which the expenditure was incurred was relevant to the nature of the business and was provided to employees of the business who are Australian citizens and permanent residents.

39. However, the Tribunal has not been able to substantiate actual payment of the training expenses by the applicant. At the hearing, the Tribunal requested evidence of payment of the training expenses by the applicant, noting that the delegate was not satisfied that the applicant had made the payments directly, as a receipt had been issued to the applicant’s migration agent.

40. In respect of the payments made to Yum Productions Pty Ltd, the applicant has attested that these payments were made in cash, and the Chief Executive Officer of Yum Productions Pty Ltd has confirmed this by a letter dated 6 September 2019. In respect of the payment to Smarter Business Training referenced in paragraph 35(b), the Tribunal has received oral and written submissions that the applicant, in effect, made this payment, as the payment was made by the applicant’s representative on instruction from and on behalf of the applicant, using proceeds received from the applicant.  The Tribunal has also received a letter from the applicant’s accountant, Mr Pradeep De Silva CPA, dated 19 August 2019, confirming that the applicant incurred the amounts referenced in paragraph 35 for the relevant years.

41. Having regard to the material before it, the Tribunal accepts these payments towards meeting the applicant’s training commitments and obligations under r.5.19(3)(f)(i)(A) and (B), as the applicant has demonstrated it has met its training commitments and obligations over the term of the most recently approved standard business sponsorship.

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

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

43. 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. 

44. The Tribunal is not aware of any adverse information known to the Department about the nominator or a person associated with the nominator.

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

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

46. 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.

47. There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business.

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

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.

    Phoebe Dunn
    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.