Top Line Services WA Pty Ltd (Migration)

[2019] AATA 2576

Top Line Services WA Pty Ltd (Migration) [2019] AATA 2576 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Top Line Services WA Pty Ltd

CASE NUMBER:  1701245

DIBP REFERENCE(S):  BCC2016/2111959

MEMBER:Mary Sheargold

DATE:1 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2019 at 6:12pm

CATCHWORDS
MIGRATION – nomination of occupation – Temporary Residence Transition stream – occupation Customer Service Manager ANZSCO 149212 – evidence of training payments – obligations under Training Benchmark B have been met – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140, 245
Migration Regulations 1994, Schedule 2, rr 1.20, 2.59, 2.68, 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 12 January 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 21 June 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 there was no evidence before the delegate to show that the applicant had met its training commitments in the first year of its standard business sponsorship from 31 July 2012 to 30 July 2013.

5. Mr Hoang Tuan Le, a director of Top Line Services WA Pty Ltd trading as Karrinyup Professionail (the applicant), appeared before the Tribunal on 5 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Van Duyet Vo.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by its registered migration agent.  The representative attended the Tribunal hearing.

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. On 12 October 2017, the applicant’s representative provided detailed submissions in relation to the application along with supporting evidence including a Record of Registration for Business Name for Karrinyup Professionail dated 4 April 2011 registered to Top Line Services WA Pty Ltd, an Australian Business Register extract for Top Line Services WA Pty Ltd, a copy of the Certificate of Registration of a Company for Top Line Services WA Pty Ltd dated 9 September 2008, a detailed financial statement for the financial year ending on 30 June 2016, Business Activity Statements for the periods 1 July to 30 September 2016, 1 October to 31 December 2016, and 1 January 2017 to 31 March 2017, a copy of Mr Vo’s employment contract, a letter from the applicant’s accountants confirming the total payroll expenditure of the applicant for the periods 31 July 2012 to 30 July 2013, 31 July 2013 to 30 July 2014, 31 July 2014 to 30 July 2015, and 31 July 2015 to 30 July 2016, and invoices demonstrating training expenditure for 2012, 2013 and 2014, and a copy of Mr Vo’s IELTS results dated 19 January 2016.

10. After the hearing, the applicant’s representative also provided the Tribunal with detailed financial statements for the financial years ending on 30 June 2018 and 30 June 2017, the applicant’s lodged Business Activity Statements for each quarter of the financial years ending on 30 June 2017 and 30 June 2018, evidence of valid workers’ compensation insurance for the period from October 2013 to October 2019, evidence of training payments made for 2016, 2017 and 2018, Mr Vo’s PAYG summaries for the financial years ending on 30 June 2016, 30 June 2017, and 30 June 2018, and salary reports from PayScale and Glassdoor in relation to Customer Service Manager roles.

    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.

12. The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form.  The letter from the Department to the applicant dated 21 June 2016 indicates that the nomination application fee has been paid.

13. The application for approval identifies Mr Van Duyet Vo, the nominee who, according to Departmental records, held a Subclass 457 visa from 13 August 2012 to 13 August 2016 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2.

14. The application for approval identifies the occupation of Customer Service Manager, ANZSCO 149212.  Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa.  Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (1492) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

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

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

16. 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.

17. Departmental records confirm that the nominator was the standard business sponsor who last identified Mr Vo in a nomination made under s.140GB of the Act.  The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

18. At the hearing, Mr Le gave evidence that he operates a nail and beauty salon business in Karrinyup, WA, as well as a wholesale nail supply business.  Mr Le told the Tribunal that he recently separated the wholesale nail supply business from Top Line Services WA Pty Ltd, but that Top Line Services WA Pty Ltd continues to trade as Karrinyup Professionail and has not ceased doing so.

19. The applicant provided the Tribunal with copies of its business registration documents, lodged Business Activity Statements for each quarter of the financial years ending on 30 June 2017 and 30 June 2018, detailed financial statements for the financial years ending on 30 June 2017 and 30 June 2018, evidence of its workers’ compensation insurance policies, and other information regarding the business’s activities.

20. On the basis of the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is met.

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

21. 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.

22. In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 21 June 2016.

23. The nominee was granted his Subclass 457 visa in the nominated occupation of Customer Service Manager (ANZSCO 149212) on 13 August 2012, sponsored by the applicant.  The applicant was approved as a standard business sponsor from 31 July 2012 to 30 July 2015.

24. The Tribunal has had regard to PAYG statements for the nominee provided by the applicant to the Department for each financial year from the year ending on 30 June 2013 to the year ending on 30 June 2015 inclusive, the PAYG statements for the nominee provided by the applicant to the Tribunal for each financial year from the year ending 30 June 2016 to the year ending on 30 June 2018 inclusive, as well as the evidence provided at the hearing by both Mr Le and Mr Vo, that the Tribunal accepts, that the nominee has been working for the applicant as a customer service manager continuously since August 2012.

25. 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)

26. 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. As set out above, r.5.19(3)(c)(i) applies to this application, and so the applicant must also comply with r.5.19(3)(d).

27. The applicant has provided the Tribunal with a copy of Mr Vo’s most recent letter of offer of employment (Letter of Employment) signed by Ms Thoa Pham, director of the applicant, and by Mr Vo, dated 29 March 2016.  The Letter of Employment states that Mr Vo will be required to work 38 hours per week, and that any additional hours will be remunerated accordingly.  The Letter of Employment states that the term of employment is for a period of “at least 2 years” commencing upon the grant of Mr Vo’s Subclass 186 visa.  The Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment beyond the initial minimum 2 year term expressed in the Letter of Employment.

28. The Tribunal has also had regard to the applicant’s detailed financial statements for the financial years ending on 30 June 2017 and 30 June 2018, prepared by its accountants Cabot Square.  In particular, the Tribunal notes that the applicant’s income for the year ending on 30 June 2017 was $1,994,336, which decreased to $1,251,082 for the year ending on 30 June 2018.  At the hearing, Mr Le gave evidence that during the 2017-18 financial year, he separated his wholesale nail supply business from the applicant’s business trading as Karrinyup Professionail, which is why there was both a decline in income as well as a recorded operating loss.  However, the Tribunal has had regard to the trading statement contained within the financial statement for the financial year ending on 30 June 2018 and notes the applicant recorded a gross profit of $722,476, with a gross profit margin of 57.7%.  The Tribunal finds that the applicant’s business continues to be in a strong position despite the divestment of the wholesale nail supply business during the previous financial year.

29. Further, the Tribunal notes the applicant paid $511,129 in wages and an additional $48,557 in superannuation contributions for its employees during the financial year ending on 30 June 2018.  At the hearing, Mr Le gave evidence that the business employs 3 full time staff and 10 part time staff, including the nominee, Mr Vo.  The Tribunal accepts Mr Le’s evidence in this respect and notes that the total employee benefits paid by the applicant is consistent with the staff numbers described, and finds the applicant has demonstrated that it has the capacity to pay Mr Vo’s salary of $65,000 per annum plus superannuation.

30. On the basis of the evidence before it, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of extending the period of employment.

31. 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)

32. 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.

33. The Letter of Employment states that the nominee will be paid a base salary of $65,000.00 per annum and that “additional hours worked will be remunerated accordingly”, and that superannuation contributions of 9.5% will be paid in accordance with the relevant laws.

34. The applicant has provided evidence from both Payscale and Glassdoor in relation to average salaries for the role of Customer Service Manager.  The Tribunal notes that the information from Glassdoor, dated 24 April 2019, shows salaries for three Customer Service Manager roles in the Perth area, one with an advertised salary of $55,892 per annum, one with a salary range of $61,000-$66,000 per annum, and one with a salary range of $74,000-$80,000 per annum.  The Tribunal notes the latter role is within the banking and financial services sector whereas the first two roles are within retail settings.  The Tribunal notes that Karrinyup Professionail is a small business operating within a shopping centre in the Perth area and is akin to a retail customer service manager role.

35. The evidence provided from Payscale, dated 24 April 2019, states that the average Customer Service Manager salary is $61,352 per annum, with a range of $49,097 to $88,924 per annum. 

36. The Tribunal notes that the applicant’s salary of $65,000 is above the average salary for a Customer Service Manager disclosed by Payscale, and that it exceeds the offers in similar sectors in Perth shown in the reports from Glassdoor.  Further, the Tribunal notes that Mr Vo’s gross payments shown in the PAYG statements provided by the applicant for the financial years ending on 30 June 2016 to 30 June 2018 inclusive indicate he has been paid in excess of his base salary of $65,000.

37. Based on all the evidence before it, 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.

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

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

39. 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.

40. The primary application was refused by the delegate on this requirement because it was found that the applicant had not met the training requirements in each year of its sponsorship approval dated 31 July 2012.  Specifically, the delegate found that the applicant did not provide any evidence to demonstrate that it met Training Benchmark B (as set out in IMMI 13/030) for the year 31 July 2012 to 30 July 2013.  The applicant’s most recent standard business sponsorship approval was for the period 31 July 2012 to 30 July 2015.

41. The applicant’s representative provided submissions to the Tribunal in October 2017 regarding the training payments made by the applicant demonstrating its fulfilment of its obligations under Training Benchmark B for each year of its standard business sponsorship, including the year from 31 July 2012 to 30 July 2013.

42. The applicant also provided a letter from its accountant setting out the total payroll expenditure of the business for each year of the applicant’s most recent standard business sponsorship.  Relevantly, the Tribunal notes the total payroll for the applicant’s business was $413,731.68 for the year 31 July 2012 to 30 July 2013; $367,087.00 for the year 31 July 2013 to 30 July 2014; and $438,571.39. 

43. The applicant has provided the Tribunal with evidence of training payments of $2,475 and $2,475 (totalling $4,950) made to QualifyMe for training for two of its Australian permanent resident nail technicians, Hoang Thi Le (on 1 April 2013) and Thi Lan Mai (on 24 April 2013) in effective workplace communication. This expenditure is equal to 1.19% of the total payroll for the year 31 July 2012 to 30 July 2013 set out above.  The Tribunal finds this satisfies the applicant’s obligation under Training Benchmark B for the first year of its most recent standard business sponsorship.

44. The applicant has also provided the Tribunal with evidence of training payments of $3,085 and $1,165 (totalling $4,250) made to Australia Massage and Beauty Institute for training Ms Hong T. Thu Tran in waxing, facial treatments, eyelash extensions, body massage, and reflexology on 30 May 2014, and for training Ms Hong Nhung Le in customer service, handling complaints, and conflict resolution between staff members.  This is equal to 1.15% of the total payroll for the year 31 July 2013 to 30 July 2014 set out above.  Therefore, the Tribunal finds this satisfies the applicant’s obligation under Training Benchmark B for the second year of its most recent standard business sponsorship.

45. The applicant also provided the Tribunal with evidence that it made training payments of $5,024.65 to Australia Massage and Beauty Institute for training Ms Thi Hoang Le, Ms Thi Hue Pham, and Ms Thiem The Vu in nail services on 28 May 2015.  This is equal to 1.14% of the total payroll for the year 31 July 2014 to 30 July 2015 set out above. The Tribunal finds this satisfies the applicant’s obligation under Training Benchmark B for the third year of its most recent standard business sponsorship.

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

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

47. 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. 

48. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

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

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

50. 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.

51. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.  The Tribunal notes that the Letter of Employment provides the minimum terms and conditions of employment set out in workplace relations legislation.

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

2. 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

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

   Mary Sheargold
   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.