THE TRUSTEE FOR THAI CULTURE TRUST (Migration)

[2019] AATA 5614

THE TRUSTEE FOR THAI CULTURE TRUST (Migration) [2019] AATA 5614 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE TRUSTEE FOR THAI CULTURE TRUST

CASE NUMBER:  1713039

DIBP REFERENCE(S):  BCC2016/4334795

MEMBER:De-Anne Kelly

DATE:2 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 02 December 2019 at 4:40pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Café and restaurant manager – financial capacity to maintain term of employment – strong income as demonstrated by bank statements – 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 Immigration on 6 June 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 22 December 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)(d)(i) and 5.19(3) of the Regulations because the nominating business could not demonstrate it had the financial capacity to provide full-time paid employment and superannuation contributions to the nominee for a minimum period of 2 years.

   The applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the Visa application refusal review. The Tribunal also received oral evidence from the nominee Miss Tipwaree Phosang. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicants were self-represented.

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 applicant the trustee for Thai culture trust owns and operates two Thai restaurants. @ Thai village located at unit 13, 1 Park Road Milton QLD 4064 and Thai Red Seed Café located at shop 6, 180 Westlake Drive, Westlake QLD 4074. Mr Praserd Toanan is the trustee for Thai culture trust and is also the cook at Thai Red Seed Café. Mr Toanan signed a new lease for the Milton Road premises on 8 July 2019 for a period of 3x3x3 years. The lease for Thai Red Seed Café at shop 5, 190 Fairfield Road, Fairfield recommenced on 1 January 2016 to expire on 31 October 2021 with an additional option of 1 x 5 years.

   The applicant has marketed the restaurants with websites, takes online orders and has an eat safe ‘very good food safety’ award from Brisbane City Council for the @ Thai village restaurant.

8. On 22 December, 2016 the trustee for Thai culture trust represented by Mr Praserd Toanan lodged a nomination application online listed as temporary residence transition for the position of Café and restaurant manager ANZSCO 14 1111 in favour of Miss Tipwaree Phosang. Miss Phosang is the spouse of Mr Toanan and he is included as a secondary applicant on her permanent residency application. The Tribunal gives no weight to this relationship in reaching a decision.

   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. Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 22 December, 2016 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: “the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245 AR (1) of the Migration Act 1958”.

11. The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

12. The application identified a person who holds a Subclass 457 Visa namely of Miss Tipwaree Phosang granted on the basis of satisfying cl.457.223(4). The application identified an occupation, namely Café and restaurant manager ANZSCO 14 1111 which is listed in ANZSCO and has the same 4-digit code as the occupation carried out by the Subclass 457 Visa holder.

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. The trustee for Thai culture trust, ABN 47256969889 trading as Thai red seed Café and @ Thai village 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). The tax returns and bank statements indicate the business is actively and lawfully operating in Australia and the most recent business sponsorship was not granted on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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

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

17. 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 years in the 3 years immediately before the application.

    Miss Tipwaree Phosang has PAYG payment summaries for the year ending 2018 for progress payments of $61,000; year ending 2019 for gross payments of $60,000. PAYG payment summaries were also submitted from 1 July, 2013 to 30 June, 2016. This indicates that the nominee was employed full-time by Thai culture trust in the position of Café and restaurant manager and for which she holds a subclass 457 visa from 1 July, 2013 to 30 June, 2016 or a period of three years. The employer nomination was lodged on 22 December, 2016. The tribunal considers that the nominee was employed full-time in Australia for at least two of the three years preceding the nomination application

18. 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)

19. 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.

20. An employment contract between Miss Tipwaree Phosang and the director of The Thai Culture Trust trading as Red Seed Thai Café and restaurant dated 27 September 2019 was included and shows a period of employment from 27 September 2019 to 27 September 2025 at an annual salary of $60,500.

21. The profit and loss statements and tax returns for the trust show a steadily improving income. For the financial years 2015 and 2016 the income is $135,467 and $159,052 for a loss of $11,228 and a profit of $982 respectively. This is consistent with the business activity statements for the same periods. For the 2018 and 2019 financial years, the tax return for Mr Toanan shows income of $273,576 and $309,088 for a profit before tax of $11,100 and $40,322 respectively. Bank statements were provided for both restaurants from 1 July, 2017 to 30 June, 2019 and show gross income of $442,303 and $475,293 respectively. Uber eats is a significant source of income to the trust. The deposits made are consistent with regular restaurant patrons with the exception of a large deposit of $15,000 made in the1 October to 31 December, 2018 quarter however even disregarding this deposit of $15,000 the bank statements show consistent and strong income.

22. It is not clear why the income in the bank statements far exceeds that shown in the tax returns although the applicant in the hearing did state that they used cash proceeds from the business to pay for perishables for the restaurant. Numerous receipts were provided showing goods were paid for in cash. Adopting this approach would reduce the profit before income tax. Alternatively, the applicants may have start-up loans that need to be repaid to themselves. The tax returns are hand written consistent with the business doing their own bookkeeping. Whatever the explanation, it is not the case that the applicants are inflating their financial statements to artificially boost their profit before tax. Quite the reverse, the applicants have strong income as demonstrated by their bank statements that is not wholly reflected in their before tax profit.

23. The Tribunal finds the business has the financial capacity such that the person will be employed on a full-time basis for at least two years. A contract of employment dated 27 September 2019 and signed by both the applicant and the nominee for a salary of $60,500 per annum as a restaurant manager does not expressly exclude the possibility of an extension.

24. 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)

25. 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.

26. A market survey report was attached to the application and includes pay scale information on restaurant managers salaries in Australia showing a salary range from $45,568-$65,061 per annum which is consistent with the nominee salary of $60,500 per annum. The tribunal considers that the wage of $60,500 being offered to the nominee is in the mid-range of salaries being offered to Australians and permanent residence for the position of cook in Australia.

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

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

28. 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.

29. From departmental records, the relevant recent sponsorship period is 28 July, 2014 to 28 July 2015. The profit and loss statement for 2015 shows wages of $48,350 and superannuation of $2393 for a total payroll of $50,743. 2% of this payroll to satisfy training benchmark A is $1015. A receipt from Sydney TAFE was provided dated 25 June, 2015 with a description as follows “457 temporary business Visa training benchmark A contribution; hospitality scholarship fund” for $1110. Training contributions were made in following years to Sydney TAFE although they were not strictly required. The tribunal considers the applicant has met the requirement in IMMI 13/030 and regulation 2.8 7B.

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

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

31. 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. 

32. The tribunal has checked the asset website for banned and disqualified persons and found no results for the trustee of the business, Mr Praserd Toanan. Accordingly, there is no adverse information associated with the nominator

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

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

34. 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.

35. Tribunal has checked the Fair Work Ombudsman’s website and found no reference to the owner or the business with regard to adverse information relating to workplace relations.

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

37. 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

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

    De-Anne Kelly
    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.