YES JAPANESE MASSAGE PTY. LTY. (Migration)

[2019] AATA 3733

YES JAPANESE MASSAGE PTY. LTY. (Migration) [2019] AATA 3733 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  YES JAPANESE MASSAGE PTY. LTY.

CASE NUMBER:  1701797

DIBP REFERENCE(S):  BCC2016/2193448

MEMBER:Bridget Cullen

DATE:3 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 03 July 2019 at 3:47pm

CATCHWORDS
MIGRATION – nomination refusal– Temporary Residence Transition nomination stream – standard business sponsor– Massage Therapist –evidence to demonstrate financial capacity of the business to employ the nominee for at least 2 years full time– decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB
Migration Regulations 1994, rr 1.13, 5.19, 120DA, 268

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 21 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 28 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)(d)(i) of the Regulations because the delegate considered that on the basis of the evidence before them, the business had not demonstrated the financial capacity to be able to pay the full-time salary and other employment conditions for at least two years.

5. The applicant appeared before the Tribunal on 17 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages. The applicant was represented in relation to the review by its registered migration agent, who attended the Tribunal hearing.

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

8. 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.

9. Based on the information before it, the Tribunal is satisfied that the application for approval was lodged on the appropriate form, accompanied with the prescribed fee. The Tribunal has cited on the Department’s file the relevant certification relating to conduct contravening s.245AR(1).

10. The Tribunal is also satisfied, based on the information before it, that the nomination application identified Mr Takashi Tanabe as the relevant UC-457 visa holder.

11. The occupation identified in the nomination is Massage Therapist, ANZSCO 411611. In determining whether the occupation in relation to the position has the same 4-digit code as the occupation carried out by the nominee, the Tribunal has had regard to the information before it, as well as the evidence provided at hearing.

12. The Tribunal accepts the nominee performs the tasks set out in their contract, aligning with the position of Massage Therapist, as set out by ANZSCO. On this basis, the Tribunal is satisfied that the occupation the nominee is employed to perform, is the same occupation carried out by the nominee whilst they held their UC-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. Records before the Tribunal confirm that the applicant was the standard business sponsor who last identified the nominee in a nomination under s.140GB of the Act. There is no evidence that the most recent business sponsorship was granted on the basis of meeting either r.120DA, r.2.59(h) or r.268(i).

16. The Tribunal, by way of the written material available to it, such as financial reports, bank statements, company tax returns and general service agreements, and the oral evidence of the applicant, that the applicant’s business is actively and lawfully operating in Australia.

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

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

18. 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.

19. On 29 June 2012, the applicant nominated Mr Takashi Tanabe under the UC-457 visa program in the position of Massage Therapist. This nomination was approved on 7 July 2012, and Mr Tanabe was subsequently granted a four-year UC-457 visa on 23 July 2012.

20. The applicant provided PAYGs and contracts for Mr Tanabe covering several years, establishing the continued employment during the relevant period.

21. The application before the Tribunal was lodged with the Department on 28 June 2016. The Tribunal accepts that Mr Tanabe has been employed on a full-time basis in Australia, in the position of Massage Therapist, for at least 2 of the 3 years preceding the nomination application, whilst on a UC-457 visa.

22. 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)

23. 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.

24. Although the delegate found that the applicant would not be able to pay the nominee on a full time basis for at least 2 years, the Tribunal has had the benefit of updated information that reveals a significant turnaround in profitability.  The losses that existed at the time of the delegate’s decision are being diminished as the business profitability improves.  The Tribunal has also had the opportunity to hear the evidence of the applicant, particularly in relation to the efforts it has made to attract business contracts, and to ensure that it has a growing clientele.  The Tribunal has been provided with copies of these “General Service Agreements,” and accepts that the business is looking much healthier than it did at the time of the Department’s decision. 

25. The applicant’s Financial Statements reflect that the business has recorded a profit of $32,987 in the 2016-17 financial year, and $24,993 in the 2017-18 financial year.  The Tribunal has been provided with evidence that the business has acquired new contracts to provide its services to local businesses and holiday makers. 

26. The financial records reflect that business turnover in gross sales is increasing steadily, as follows:

    ·30 June 2016 - $95,427

    ·30 June 2017 - $147,845

    ·30 June 2018 - $152,389.

27. The Tribunal queried whether the payroll figures provided in the financial statements were correct, as it initially appeared that the payroll figure was low, relative to the number of employees that the applicant said were employed by the business.  The applicant explained that, other than the nominee Mr Takashi Tanabe, the remaining employees were casual and utilised only when surge capacity was required at busy times (such as during the Commonwealth Games). 

28. Following the hearing, the applicant provided the Tribunal with copies of the PAYG summaries that were issued to the employees, which reflects the following payments:

29. The Tribunal accepts that the wage payments reflected in the applicant’s financial documentation reflect the casual status of the employees other than Mr Tanabe. The Tribunal considers that the business has demonstrated that it has the financial capacity to also pay Mr Tanabe’s wages and entitlements.

30. The Tribunal finds the company will employ Mr Tanabe on a full-time basis for at least two years. It therefore satisfies r.5.19(3)(d)(i).

31. The contract of employment provided by the company for Mr Tanabe does not expressly exclude the possibility of extending the period of employment. In that case, the company satisfies r.5.19(3)(d)(ii).

32. 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)

33. 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.

34. At the time of nomination in June of 2016, the applicant proposed to pay Mr Tanabe an annual wage of $57,200.00, plus superannuation.  The Tribunal has been provided with a copy of Mr Tanabe’s PAYG payment summary for the year ending 30 June 2018, reflecting gross payments of $74,464.00.  Mr Tanabe is therefore being paid above the rate contractually required.

35. Payscale reveals that the average annual fulltime salary for a massage therapist in Australia is $53,712.00.  On this basis, the Tribunal finds that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

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

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

37. 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.

38. The applicant seeks to meet Training Benchmark A, and will have met its obligations if it spent more than 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

39. The applicant’s last period of Standard Business Sponsorship commenced on 7 July 2012.

40. The Tribunal has been provided with copies of receipts for “457 Visa Training Benchmark A – Contribution” payments made to Bond University.  The payments made are reflected in the following table:

41. Although there is a nominal shortfall in payments for Year 2 of $89.20; and Year 3 of $148.00, the applicant has explained that this was inadvertent, and due to the challenges of operating a small business and endeavouring to reconcile wage records.  The applicant, on realising this mistake, took steps to make further payments that leave its overall training expenditure well above that which was required, albeit outside of the time interval applicable.  Given these efforts, and the minor and inadvertent nature of the errors relating to payment shortfall, the Tribunal has determined to disregard the requirement to meet the training obligations because it is reasonable to do so.

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. There is no information before the Tribunal indicating that adverse information exists relating to the applicant, or a person associated with the applicant. 

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. No evidence before the Tribunal indicates the applicant has not complied with workplace relation laws. The Tribunal, therefore, is satisfied that the applicant has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

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.

    Bridget Cullen
    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.