The Trustee for the Vishal Modi Family Trust (Migration)

[2021] AATA 3722

The Trustee for the Vishal Modi Family Trust (Migration) [2021] AATA 3722 (30 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for the Vishal Modi Family Trust

CASE NUMBER:  1823635

HOME AFFAIRS REFERENCE(S):          BCC2017/3968983

MEMBER:Nicola Findson

DATE:30 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 30 July 2021 at 5:20pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Café or Restaurant Manager – training commitments and obligations – non-compliance with the obligations – immediately took steps to remedy the issue – whether reasonable to disregard the requirements – 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 Home Affairs on 6 August 2018 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 26 October 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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) of the Regulations because he was not satisfied the applicant had provided evidence to demonstrate it had met its training requirements during the period of its most recent approval as a standard business sponsor.

5. The applicant, represented by Mr Vishalkumar Modi, appeared before the Tribunal on 30 July 2021, to give evidence and present arguments. The Tribunal also took oral evidence from the nominee, Mr Harsh Modi.    

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.

9. The applicant operates a well-established Mexican restaurant – ‘Cha Chi’s Mexican Cantina’ - in Glenunga, South Australia, 5064.  It has nominated the position of Café or Restaurant Manager (ANZSCO 141111), in relation to Mr Harsh Hasmukhbhai Modi (who is the brother of Mr Vishalkumar Modi) for approval.

10. During the review process, and in response to an invitation by the Tribunal dated 5 February 2021, the applicant provided further information to demonstrate all the relevant requirements of r.5.19(2) and (3), including (but not limited to):

    ·ASIC and ABN records in relation to the applicant;

    ·Financial Statements for the years ended 30 June 2019 and 2020;

    ·Current organisational structure chart, indicating that the applicant employs 5 Australian employees and 3 foreign employees;

    ·Position description for the nominated position;

    ·ATO Notices of Assessment for the period 2015 to 2020 and bank statements of the nominee;

    ·Letter of support dated 16 February 2021 from the applicant’s accountant who, among other things, has formed the opinion based on historical and current financial information before him that the applicant has the financial capacity to meet its obligations in relation to the nominee’s position for at least 2 years;

    ·Photographs of applicant business; and

    ·Statement of genuine need for the nominated position.

    The application must be compliant: r.5.19(3)(a)

11. 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, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

12. On the basis of information in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee.        The relevant s.245AR(1) certification was also provided in the application form.

13. The application for approval identifies Mr Harsh Hasmukhbhai Modi, who according to Departmental records, held a Subclass 457 visa granted on 15 June 2015, on the basis of satisfying cl.457.223(4) of Schedule 2.

14. The occupation identified in the application is Café or Restaurant Manager, which is listed in the ANZSCO with a 4-digit occupation unit group code of 1411.

15. On the information before it, the Tribunal is satisfied that the occupation identified in the application is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa.

16. The applicant provided evidence in support of its application describing the need for the business to employ a paid employee to work in the position under the nominator’s direct control.  At the hearing, Mr Modi outlined to the Tribunal that he had purchased the applicant business in 2012.  He indicated to the Tribunal that the business is a fully licensed restaurant (with seating for 120 people), also offering functions and catering services and Uber Eats deliveries.  Mr Modi gave evidence (which is supported by material provided to the Tribunal) that he has other business interests, and that his main responsibility and focus is to oversee and grow those companies, and not be involved in the day to day operations of the applicant business.  He gave detailed and persuasive evidence about the need for the applicant to employ a paid employee to work in the nominated position of Café or Restaurant Manager. 

17. On the evidence before it, the Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. 

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

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

19. 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.

20. The Tribunal has had regard to the ASIC information and the financial documents provided to it.  On the basis of this evidence the Tribunal is satisfied that the nominator is actively and lawfully operating a restaurant business in South Australia. On the basis of the Department’s electronic records, the Tribunal is satisfied the applicant was an approved standard business sponsor in the period December 2014 to December 2017.

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

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

22. 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.

23. The applicant has provided to the Tribunal evidence that the nominee commenced working in the nominated occupation of Café or Restaurant Manager with the nominator as the holder of a Subclass 457 visa, in July 2015.  This nomination was lodged on 20 October 2017.

24. The applicant has provided evidence (including payroll records and ATO Notices of Assessment) that the nominee has been employed in the position since July 2015 and has continued to be employed since.  The evidence before the Tribunal confirms that the nominee has worked in a full-time capacity in the position of Café or Restaurant Manager, for the applicant, for a period of two years whilst holding a Subclass 457 visa.

25. On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.

26. 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)

27. 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.

28. The Tribunal has had regard to the applicant’s financial capacity to employ the nominee and is satisfied, on the basis of the financial reports and its ability to maintain the nominee’s employment to date, that the applicant can provide employment to the nominee for a period of at least 2 years.

29. It is now about three years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position.  The Tribunal has had regard to the contract of employment signed on 17 October 2017 by the applicant and the nominee.  The contract, which sets out the terms and conditions of employment, indicates that the period of employment is a minimum of 2 years full time from the date of the visa grant, with capacity to extend the employment. The base salary offered is $55,000pa plus superannuation, to work a 38-hour week.

30. The Tribunal notes that notwithstanding the impact of the COVID-19 pandemic and subsequent restrictions imposed by the Government, the applicant business has continued to remain financially viable.

31. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the nominator has the financial capacity to maintain the nominee’s employment, as it has done since July 2015.

32. The Tribunal is also satisfied, on the basis of the evidence before it, 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. 

33. 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)

34. 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.

35. The Tribunal has had regard to the terms and conditions of employment as set out in the employment contract before it.  The contract provides for the nominee’s leave entitlements and indicates that the base salary will be $55,000pa plus 9.5% superannuation. The Tribunal is satisfied that the nominee’s terms and conditions of employment reflect current employment laws.

36. The Tribunal has considered information before it, including current information from payscale.com.au, which indicates that a Restaurant Manager in South Australia can expect to earn between $45,000 and $66,000 per annum. 

37. The Tribunal also observes that the nominee was granted her Subclass 457 visa on the basis of the proposed base salary and the Department was satisfied that the base salary was no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent duties in the same location.

38. On the basis of the information before it, the Tribunal is satisfied that the nominee’s base salary is within the range of that normally paid to a similarly experienced Café or Restaurant Manager.

39. The Tribunal is satisfied that the terms and conditions applicable to the nominated position 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.

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

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

41. 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.

42. The Tribunal finds that the period of the applicant’s most recent sponsorship approval was between 8 December 2014 and 8 December 2017.

43. The Tribunal notes the delegate was not satisfied the applicant met this requirement because the delegate found the training benchmarks were not met during each relevant complete year of the standard business sponsorship agreement.

44. The applicant has provided to the Tribunal financial documentation which reveals that the total payroll expenditure, inclusive of superannuation, in the period of the standard business sponsorship was as follows:

    ·8 December 2014 to 7 December 2015 - $134,916

    ·8 December 2015 to 7 December 2016 - $159,562

    ·8 December 2016 to 7 December 2017 - $169,989

45. The evidence before the Tribunal (including invoices and receipts issued by McKkr’s Training) is that training expenditure was incurred by the applicant, in respect of its Australian citizen and permanent resident employees, during the third year of the standard business sponsorship approval period, in the amount of $4,650.

46. Mr Modi explained to the Tribunal, in a written submission as well as in oral evidence during the hearing, that the applicant did not intentionally avoid paying for training in the 2015 and 2016 fiscal years. He explained that he had engaged the assistance of a migration agent in respect of the standard business sponsor application and was not fully informed about the obligations relating to training. He indicated that it was only when the applicant was preparing to lodge an application to sponsor a foreign employee, that he became aware the applicant was not complying with the applicable obligations relating to training requirements. He said he immediately attempted to remedy the issue by arranging the provision of training to the Australian employees of the business. It was submitted on the applicant’s behalf by its representative that the aggregate expenditure on training between December 2016 and December 2017 was commensurate with the total training commitment for the sponsorship approval period, and that given this and taking into account Departmental policy, it would be appropriate for the Tribunal to disregard the requirement in r.5.19(3)(f)(i). It is in this context that Tribunal has considered whether it is reasonable to disregard the requirements.

47. On the basis of the evidence given by Mr Modi, which the Tribunal considers reliable, the Tribunal is persuaded that when the applicant became aware it was not complying with the applicable obligations relating to training requirements, it immediately took steps to remedy the issue.  On the basis of material before it, the Tribunal finds that during the period of the applicant’s most recent sponsorship approval - between December 2014 and December 2017 - the applicant had payroll expenditure in the amount of $464,467.  The Tribunal further finds that although training benchmarks were not met during the first two years of the relevant approval period, the applicant’s aggregate expenditure on training in the third year - $4,650 - was commensurate with the total training commitment for that period.

48. Having made these findings, and in the circumstances of this case, the Tribunal is satisfied that it is reasonable to disregard the requirements.

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

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

50. 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. 

51. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

53. 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.

54. There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relation laws.

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

    Genuine need to employ nominee: r.5.19(3)(i)

56. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

57. In considering this issue, the Tribunal has taken into account the evidence given by Mr Modi at the hearing, which was not available to the delegate at the time of decision, about the applicant’s operations as well as the nominee’s contributions to the business based on his skills, expertise and length of service. Mr Modi gave evidence to the Tribunal about the critical role the nominee plays in managing the operations of the busines and ensuring it remains profitable.  Mr Modi also indicated to the Tribunal, and it is accepted, that in the current climate, it is very difficult to find suitably qualified, experienced, trustworthy, reliable and capable employees to work in the food services industry.

58. The Tribunal is satisfied that the nominee has genuinely been carrying out the duties of a Café or Restaurant Manager as described by ANZSCO for the applicant for more than six years.  The Tribunal also accepts the evidence before it that the nominee has the requisite skills and experience to perform the role; will continue to be a valuable employee of the applicant; and will continue to be crucial to the success of the applicant’s business operations.

59. Having considered all of the evidence before it, the Tribunal is persuaded that there is a genuine need for the applicant to employ the nominee, as a paid employee, to work in the position under the applicant’s direct control, and it finds that the requirement in r.5.19(3)(i) is met.

60. 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

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

    Nicola Findson
    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.