1409974 (Migration)

1409974 (Migration) [2016] AATA 3185 (9 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Classic Holiday Club Pty Ltd
CASE NUMBER:  1409974
DIBP REFERENCE(S):  BCC2013/191352
MEMBER:Don Smyth
DATE:9 February 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 09 February 2016 at 5:08pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 May 2014 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).
The applicant applied for approval on 6 February 2013. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g) because there was adverse information known to the Department about the applicant and it was not reasonable to disregard the adverse information.
The applicant appeared before the Tribunal on 6 January 2016 to give evidence and present arguments. Mr Mark Stephenson, a director of the applicant company, gave evidence on the applicant’s behalf. Ms Nicki Passanisi, the Payroll Supervisor, also gave evidence at the hearing.
The applicant was represented in relation to the review by its registered migration agent.
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
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.
Summary of Claims and Evidence
The nomination application identified the nominator as Classic Holiday Club Pty Ltd (ABN 73106218606) (“the company”). The position was identified as “OPC Marketing” and the occupation as Sales and Marketing Manager. The employer indicated that there was already an Australian employee in the workplace doing the same work as the nominated person and that an individual agreement applied to the Australian employee. The guaranteed annual earnings for the relevant person were identified as $55,000. The base rate and guaranteed annual earnings applicable to the nominated person were also identified as $55,000. The nomination indicated that the business had 41 Australian employees and 11 foreign employees. The gross payroll expenditure in the previous 12 months was identified as $2,400,000, while the gross expenditure on training Australian citizens or permanent residents in that period was $105,965. The Department was provided with documentation recording that Classic Holiday Club Pty Ltd had been approved as a standard business sponsor on 19 October 2011 and that the sponsorship approval was effective until 19 October 2014.
The nominated person was identified as Dawn Allyson Spivey (“the nominee”). The Department was provided with a résumé for the nominee which recorded that she had been a sales and marketing executive for Classic Holidays since February 2009. It was also provided with a notice, dated 11 October 2010, recording that the nominee had been granted a Subclass 457 visa for the period from 11 October 2010 to 11 October 2014. The sponsor was identified as Classic Property Management Ltd, the occupation as Sales and Marketing Manager and the total remuneration as $55,000. The Department was also provided with a notice recording that a Subclass 457 nomination had been approved in respect of Ms Spivey on 17 August 2010.
A number of documents were provided to the Department in support of the current nomination application. These included a letter from the company’s Director of Marketing outlining the company’s training activities, further documentation relating to training, a position description for the position of OPC Marketing Manager, a description of the business of the company, various financial records relating to the company and a letter relating to the nominee’s employment.
Further information on the Department’s file records that Classic Holiday Club Pty Ltd (Classic Holiday Club) made a Subclass 457 nomination application in respect of Ms Spivey and that this was approved on 26 September 2013.
By letter of 26 February 2014, the Department provided the applicant with an opportunity to comment in relation to a decision by the Department to sanction the applicant company. The Department was provided with a response dated 31 March 2014. This was signed by a director of Classic Holiday Club, Mr Mark Stephenson. Mr Stephenson noted that, on 17 February 2014, the Department had barred the company for 12 months from sponsoring an applicant under the Subclass 457 visa program, The company had been found to have failed in its obligations to ensure equivalent terms and conditions of employment (r.2.79), to keep records (r.2.82), to provide information to the Department when certain events occurred (r.2.84) and to ensure the primary sponsored person worked or participated in the nominated occupation, program or activity (r.2.86). It was submitted that it was reasonable to disregard the information for the purposes of the nomination for the Subclass 186 visa. The letter included information about the company and the impact of the sanction on the company and on the sponsored employees. It was submitted that, if the existing sponsored employees were unable to continue in their roles, this would lead to a fall in sales and business opportunities. Submissions were made as to why it was reasonable to disregard the adverse information. These submissions included reference to certain practices and procedures being implemented to ensure compliance with sponsorship obligations.
It was submitted that there were compelling and compassionate circumstances that warranted the Department disregarding the adverse information about Classic. It was submitted that the nominee had been working with Classic as a 457 visa holder since October 2010. On 26 September 2013, her 457 nomination had been transferred from Classic Property Management Pty Ltd to Classic Holiday Club. Reference was made to the nominee’s performance. It was submitted that Classic Holiday Club had transferred the nominee to manage its newly established office in Melbourne and her experience and knowledge were critical to keeping the Melbourne office open. It was submitted that finding someone of the nominee’s calibre and experience who was an Australian citizen or permanent resident would be almost impossible. Reference was made to the applicant’s history in Australia since September 2008 and to her family’s integration into the Australian community. It was submitted that it would be difficult for the nominee and her family to return to the United Kingdom (the UK). It was submitted that the breach of Classic Holiday Club’s sponsorship obligations should not “result in the harsh, unintended consequence of [the nominee] not being granted a Subclass 186 visa”.
On 15 May 2014, the Department made a decision to refuse the application for approval of the nomination of a position on the basis that the applicant did not satisfy r.5.19(3)(g).
The applicant wrote to the Tribunal on 21 December 2015 confirming that the nominee was still working as OPC Marketing Executive and that she had worked full-time in that capacity since 2010. During that time, she had relocated to Melbourne to work in the office there and was still working in the capacity of OPC Marketing Executive. It was submitted that it was expected that the nominee would continue in that role for at least two years. Her current base rate of pay and guaranteed earnings of $55,000 were at or above the prevailing market rate. There was nothing in her employment agreement that precluded ongoing employment in the position. The Tribunal was provided with a copy of an employment contract signed on 25 June 2013.
The Tribunal was provided with further submissions dated 22 December 2015. Mr Stephenson and Ms Passinisi gave evidence on behalf of the company at the hearing on 6 January 2016. The Tribunal received post-hearing submissions. It has had regard to all of the evidence and submissions that have been provided. These are discussed in greater detail in the Tribunal’s reasons, below.
The application must be compliant: r.5.19(3)(a)
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 must identify a relevant person and occupation.
The Tribunal is satisfied on the evidence before it that the application was made on the approved form (form 1395) and was accompanied by the fee prescribed in r.5.37. It was therefore made in accordance with r.5.19(2) and the Tribunal finds the requirements of r.5.19(3)(a)(i) are met.
The nomination identifies the holder of a Subclass 457 visa granted on the basis that the person satisfied the criterion in cl.457.223(4) of Schedule 2. The evidence before the Tribunal indicates that Ms Spivey, the person identified in the nomination, was granted a Subclass 457 visa on this basis on 11 October 2010.
The nomination identifies an occupation in relation to the position that is listed in ANZSCO, namely Sales and Marketing Manager. This has the ANZSCO code 1311-12. The nominee was granted her Subclass 457 visa in relation to the occupation of Sales and Marketing Manager. On the evidence before it, the Tribunal accepts that this is the relevant occupation carried out by the Subclass 457 visa holder. On the evidence before it, the Tribunal is satisfied that the occupation identified in the application is listed in ANZSCO and that it carries the same 4-digit occupation unit group code as the occupation carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal therefore finds that the applicant meets r.5.19(3)(a)(iii).
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
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.
The nominating company is the standard business sponsor who last identified Ms Spivey in a nomination made under s.140GB of the Act. A nomination by Classic Holiday Club in relation to Ms Spivey was approved by the Department on 26 September 2013.
The Tribunal has been provided with a significant volume of information relating to the nominating company, Classic Holiday Club, including information relating to wages and other matters. It is satisfied that Classic Holiday Club is actively and lawfully operating a business in Australia.
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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 in the 3 years immediately before the application.
The Tribunal notes that Classic Holiday Club is the current nominating company. The nominee is currently employed as OPC Marketing Executive in Melbourne. The Tribunal has been provided with an employment contract, dated 25 June 2013, which confirms that she is employed as an OPC Marketing Executive by Classic Holiday Club. This contract gives 1 August 2010 as the commencement date. However, the evidence before the Tribunal indicates that the nominee was granted a four-year Subclass 457 visa on 11 October 2010 on the basis of sponsorship by Classic Property Management Pty Ltd. The Tribunal has been provided with a record of the Subclass 457 visa approval based on the sponsorship by Classic Property Management Pty Ltd. The representative’s submission of 22 December 2015 noted that, on 6 February 2013, both a nomination application and associated subclass 186 permanent visa application were lodged by Classic Holiday Club. In late June 2013, the nominee “transferred in her role from Queensland to Melbourne to work for the company in Melbourne”. The submission went on to state as follows (referring to the nominee as “the applicant”):
On 9 July 2013, a nomination application was lodged by the company to transfer the applicant's 457 visa to sponsorship by the company from its other entity Classic Property Management. This nomination was applied for to ensure eligibility for the applicant under the TRT pathway, which requires (at time of 186 nomination decision) that the 186 nominator is the same entity as the most .recently approved 457 nominator.
The Tribunal was provided with documentation showing that, on 26 September 2013, the Subclass 457 nomination of the nominee by Classic Holiday Club was approved.
Mr Stephenson indicated at the hearing that the nominee was still working for Classic Holiday Club. When asked whether it was the same position she had been working in before, he stated that she had been working on the Sunshine Coast before. She moved to Melbourne, one of the growth areas. He stated that it was a different location but the same job. He said that the duties were largely the same. Promoting the resort was the same. It was a different location but the same duties. He explained the reason for the nominee’s move to the Melbourne office.
The Tribunal asked about the company structure. It noted that, when the Subclass 457 nomination was approved in October 2010, it was a nomination by Classic Property Management Pty Ltd. It noted that the current nomination was a nomination by Classic Holiday Club. It noted that there had also been a Subclass 457 nomination application by Classic Holiday Club. It asked whether the employer had changed since 2010. Mr Stephenson stated that it was part of a structural streamlining of the group. Classic Property Management had the original sponsorship. Classic Holiday Club was the marketing and sales arm of the group. They took advice about making sure that all the nominations should be under that arm because that was essentially where people were going to be employed. That change took place between 2010 and 2014. There was a transition where they had to switch the nominee’s 457 sponsorship. Mr Stephenson confirmed that this was done in 2013 after the current nomination application was made. The Tribunal asked Mr Stephenson to explain how Classic Property Management and Classic Holiday Club were related. He stated that they were subsidiaries of the same group. The history was that the group had evolved through a series of joint ventures. It came under one umbrella. It had subsequently been amalgamated into one holding company that held all the companies. He said the switch in the sponsorship was about tidying things up and making sure all the sponsorships were in the key entity doing sales and marketing. Mr Stephenson said the holding company was Benficio Pty Ltd. It owned Classic Holiday Club and Classic Property Management. Mr Stephenson confirmed that, throughout the relevant period the nominee had been employed by related entities within the one group.
In post-hearing submissions, the Tribunal was provided with further documentation to indicate that Classic Property Management and Classic Holiday Club are associated. This included a letter from Ramy Filo, Chief Executive Officer of Classic Holiday Club, outlining the company structure, a company structure chart and further information from Mr Stephenson concerning the relationship between Classic Holiday Club and Classic Property Management.
The Tribunal notes that the initial position description for the nominee identified duties in relation to the Sunshine Coast in particular. It is apparent that the nominee no longer performs duties in relation to the Sunshine Coast as she moved to the Melbourne office in June 2013. However, it is apparent from the documentation before the Tribunal that the nominee continues in the position of OPC Marketing Executive, the same position she held in Queensland. The Tribunal accepts that, while the location of the nominee’s employment changed, her position did not. In any event, the Tribunal must consider whether the nominee had been employed full-time in Australia in the position for which she held the Subclass 457 visa for at least two of the three years preceding the nomination application on 6 February 2013. The Tribunal accepts on the evidence before it that the applicant was employed with Classic Property Management from at least August 2010. It has been provided with a copy of a letter of engagement relating to her employment as an OPC Marketing Executive commencing on 1 August 2010. The Tribunal accepts that she was employed full-time in that position since that time. It was on the basis of this employment that she was granted a Subclass 457 visa on 11 October 2010. The Tribunal has been provided with documentation confirming that the nominee has worked full-time as OPC Marketing Executive since 2010. The Tribunal accepts on the evidence before it that she was employed full-time in the position for which she held the Subclass 457 visa for at least two of the three years immediately preceding the nomination application on 6 February 2013. For all of that period, the location of the employment was in Queensland. While the nominee subsequently moved to Melbourne, the Tribunal accepts that she continued to perform the same position of OPC Marketing Executive. A nomination application was subsequently lodged to transfer the nominee’s sponsorship to Classic Holiday Club. The Tribunal accepts that this was based on a restructuring of the group and did not affect the position in which the nominee was employed.
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)
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.
In the submission of 22 December 2015, it was submitted that the business confirmed its expectation that the nominee would be employed on a full-time basis for at least the next two years. In this regard, the Tribunal was provided with a letter from Nicki Passanisi, Payroll Supervisor of the nominating company. Ms Passinisi indicated that the nominee had been working full-time as OPC Marketing Executive since 2010. The Tribunal discussed this clause with Mr Stephenson at the hearing. Mr Stephenson stated that they would like to employ the applicant for a long time. He stated that there was no reason why they would not keep her employed for years. Mr Stephenson also confirmed at the hearing that the nominee had been working in the relevant position since 2010.

At the hearing, Mr Stephenson confirmed that the nominee’s most recent contract was the contract of 25 June 2013. This contract does not specify a term. It provides for full-time employment. It does not expressly exclude the possibility of extending the period of employment. The Tribunal accepts that the nominee has effectively been employed in the same position since 2010. Having regard to the evidence from the nominating company, it accepts that she is a valued employee of the company. The Tribunal accepts on the evidence before it that the nominee will be employed on a full-time basis in the position for at least two years and that the terms and conditions of the nominee’s employment do not expressly exclude the possibility of extending the period of employment.
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)
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.
The evidence before the Tribunal indicates that the nominee is employed as an OPC Marketing Executive (also described in her position description as OPC Marketing Manager) in the company’s Melbourne office. When asked about whether there were any other OPC Marketing Managers in Melbourne, Mr Stephenson gave evidence that there was an Australian citizen named Robby. It would appear from the information provided in post-hearing submissions that this was a reference to Mr Robert Verhoef. At hearing, Mr Stephenson was unable to provide precise details concerning Robby’s salary, although he said he would be surprised if it was not the same as the nominee’s salary.
The Tribunal notes that, in his evidence at the hearing, Mr Stephenson indicated that the contract of 25 June 2013 is still the current contract for the nominee. This refers to remuneration of $55,000 per year plus $50 commission per settled sale. As discussed at the hearing, the documentation before the Tribunal indicates that the initial nomination approval in October 2010 was based on a base salary of $55,000. It was of some initial concern to the Tribunal that the base salary which provided the basis for approval in October 2010 has not increased in the subsequent five years. When this was raised with him at the hearing, Mr Stephenson confirmed that the nominee had been paid a base salary of $55,000 since 2010, although he also referred to commission payments. Ms Passanisi stated that hardly a fortnight would go by when the nominee did not get commission.
It was also of some initial concern to the Tribunal that the documentation submitted in support of the review application included records indicating that another person employed in the occupation of Sales and Marketing Manager has a base salary of $120,000. The documentation shows that Mr William Michael Kerfoot was granted a Subclass 457 visa on 10 September 2015. His nominated occupation was Sales and Marketing Manager and his base salary level was $120,000. When this was raised at the hearing, it was submitted that Mr Kerfoot was in charge of a whole national program, even though he was a Sales and Marketing Manager. He was at a different seniority level to the nominee. He was the national sales and marketing manager for the whole group.
The post hearing submissions also addressed r.5.19(3)(e). In summary, it was submitted that the company remunerated all its employees using the same methodology, regardless of their location within Australia. It was submitted that “location” should be considered to be the whole of Australia. The Tribunal was provided with a letter from Mr Stephenson who stated that an Australian in the same role as the nominee with the same level of experience would be remunerated at $55,000 per annum plus commission. As evidence, of this, the Tribunal was provided with the contract of Mr Thomas Irvine, an OPC Marketing Manager working on the Gold Coast. Mr Stephenson stated that they did not differentiate between state locations. It was submitted that there was another OPC Marketing Manager in Victoria, namely Robert Verhoef. His salary was a base of $52,000 plus commission. Mr Stephenson stated that, although Mr Verhoef was the closest Australian employee equivalent to the nominee, he was less experienced and therefore paid a lower base salary. The Tribunal was provided with a copy of Mr Verhoef’s employment contract of November 2015, which shows a base salary of $52,000. Mr Stephenson indicated that the base salary for Managers and Sales Representatives was not increased annually. In the previous financial year, the nominee had earned a total of $94,232, including her base salary and commission.
Mr Stephenson also stated that Will Kerfoot was the National Sales and Marketing Manager and performed a different role to the nominee. He indicated that Mr Kerfoot was responsible for all sales nationally and provided a summary of his duties.
It was further submitted that, when the currently approved Subclass 457 nomination for the nominee was lodged, Ms Beverly Grant had been put forward as an equivalent Australian employee in Victoria. The Tribunal was provided with a copy of a document showing that Ms Grant was an OPC Marketing Manager and that her remuneration was $55,000 per annum. It was submitted that Ms Grant no longer worked for the company but that her salary remained relevant as an indicator that the nominee was being paid the market rate.
The Tribunal has carefully considered all the material that has been submitted, including documentation relating to Miss Grant, Mr Verhoef, Mr Irvine and Mr Kerfoot.
It is apparent from the documentation that the nominating company has employed a number of OPC Marketing Managers with remuneration of $55,000 per annum base salary plus commission. This is consistent with submissions concerning a nationally consistent approach to remuneration. However, the Tribunal does not accept that Australia as a whole can be taken to be the relevant location for the purposes of r.5.19(3)(e). The evidence indicates that the applicant is employed as an OPC Marketing Manager in Melbourne. There is another person, Mr Verhoef, who is employed as an OPC Marketing Manager in Melbourne. The Tribunal has been provided with a copy of his letter of appointment, dated 16 November 2015. The Tribunal found somewhat surprising the submissions seeking to distinguish the situation of Mr Verhoef from that of the nominee. The documentation clearly indicates that both Mr Verhoef and the nominee are employed in the position of OPC Marketing Manager in Melbourne. The Tribunal has considered the evidence of Mr Stephenson himself which indicates that the reason Mr Verhoef is remunerated at a lower rate than the nominee is because he is less experienced. The question for the Tribunal is whether 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. It may be that Mr Verhoef is less experienced than the nominee. He was appointed to the position in November last year. Nevertheless, the documentation suggests that he is performing the work of an OPC Manager in Melbourne, the same work performed by the nominee. Notwithstanding the difference in experience, the Tribunal considers that Mr Verhoef is a suitable comparator for the purposes of r.5.19(3)(e). The evidence suggests that there is no other Australian citizen or permanent resident performing equivalent work in the same location.
The nominee’s terms and conditions are more favourable than those of Mr Verhoef. In all the circumstances, the Tribunal is satisfied 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. This is the case notwithstanding that the nominee’s salary has remained at the same level for some years. The Tribunal has had regard to the documentation relating to Mr Kerfoot. This indicates that, notwithstanding that he has been nominated for the occupation of Sales and Marketing Manager, he is employed as National Sales and Marketing Director. The Tribunal accepts that this involves work at a more senior level than the work performed by the nominee.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have met the training requirements that the nominator was required to meet under r.2.59(d) or (e) or r.1.20D(2)(c) (as applicable) for the purpose of approval as a standard business sponsor.
Under r.2.59(d) and (e), which apply to business sponsorship approvals on or after 14 September 2009, a business that is lawfully operating in Australia either must either:
·meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing (if lawfully operating for 12 months or more): r.2.59(d); or
·have auditable plan to meet the benchmarks specified in that instrument (if lawfully operating for less than 12 months): r.2.59(e).
For business sponsorship approvals before 14 September 2009, the applicant for approval needed to establish they would introduce to, or utilise or create in, Australia new or improved technology or business skills; or, that they had a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia: r.1.20D(2)(c).
In the material provided prior to hearing, it was submitted that the nominator had most recently been approved as a standard business sponsor on 21 April 2015 and that its training obligation was to spend at least 1% of its payroll for each 12-month period from 21 April 2015. It was submitted that, as less than 12 months had passed, under policy the company should be regarded as meeting this requirement. The Tribunal was provided with a record of the company’s most recent approval as a standard business sponsor on 21 April 2015.
The Tribunal notes that the evidence indicates that Classic Holiday Club has been approved as a standard business sponsor for some time. The Tribunal has been provided with evidence of an earlier approval as a standard business sponsor on 19 October 2011. The relevant version of r.5.19(3)(f) requires that the nominator “has met the training requirements that the nominator was required to meet” under paragraph 2.59(d) or (e). In circumstances where the nominator has been approved as a standard business sponsor for some time, the Tribunal does not accept that consideration of this obligation is confined to the period since the most recent approval. It does not accept that the nominator can be taken, without more, to have satisfied this requirement simply on the basis that no more than 12 months have passed since the most recent approval as a standard business sponsor. When this issue was raised at the hearing, Mr Stephenson indicated that there was in fact significant expenditure on training. He referred, for instance, to wages for training people, doing external training, bringing people in from outside and paying a substantial usage fee for an online training package. He indicated that there was one person specifically dedicated to training nationally on the Sales and Marketing side (reference was made to a person named “Kay”) as well as other people in the organisation whose role encompassed training. He said they had spent in excess of $80,000 bringing people in to do external training.
As the nominating company has traded in Australia for 12 months or more, the requirements of r.2.59(d) are relevant in the present case. These require that the company meet the benchmarks for the training of Australian citizens and permanent residents specified in the relevant instrument. The relevant instrument (IMMI 13/030) specifies the training benchmarks for an established business, as follows:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The representative’s post-hearing submissions addressed the training requirements, although by reference to a different version of r.5.19(3)(f). It was submitted that, when the company’s most recent standard business sponsorship was approved on 21 April 2015, it had committed to spending at least 1% of its gross wages on training of its Australian citizen or permanent resident employees in a calendar year from the date of approval of the standard business sponsorship. It was submitted that the business had provided evidence to show that from 21 April 2015 to date it had spent at least 1% of its gross wages on training its Australian citizen or permanent resident employees. It was submitted that wages for the relevant period were $3,834,976 while expenditure on training was $169,732. The submission also included information for the 2014/2015 financial year.
The Tribunal was provided with a table giving an overview of the total amount spent on wages and the total wages for the company. This indicated that, for the 2014-15 financial year total wages were $4,509,708.37 and training expenditure was $363,107.64. For the period from 21 April 2015, wages were $3,834.976.58, while expenditure on training was $169,732.26. According to the information in the table, the training amounts consisted of a combined total of “the wages of our employees that have a training hat (pro rated for the percentage of time they spend on training)” and invoices for external training providers. The Tribunal was provided with a General Ledger [Summary] and Payroll Activity Summary as evidence of the relevant wages figures. Also submitted was payroll information and other documentation relating to William Kerfoot and Kay Shearing. It would appear from the documentation that the company attributed 50 per cent of William Kerfoot’s salary and 80 per cent of Kay Shearing’s salary to training. Kay Shearing’s wages amounted to $145,826.68 in 2014/15 and $80,842.58 for the period from 1 July 2015 to 31 December 2015. The Tribunal has also been provided with documentation relating to Kay Shearing’s appointment to the position of Sales Support Manager. The documentation describes the role as being responsible for the support and training of sales operations at licensees and in house. The Tribunal has also been provided with Mr Kerfoot’s employment contract, which shows he is employed as National Sales and Marketing Director. The relevant position description includes tasks such as “Develop, conduct and supervise regular group training for Sales Managers”, deliver training to the sales taskforce and facilitate regular training and feedback sessions with “new hires”. The Tribunal was also provided with records of invoices from, and payments to, the Blackburn Family Trust, which was described as the company’s external training providers. It was provided with what was described as a sample training document.
The Tribunal notes that expenditure that can count towards the training benchmark includes “employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job”. On the evidence before it, the Tribunal accepts that Kay Shearing falls into this category. Having regard to the documentation, the Tribunal considers that it is reasonable to attribute 80 per cent of her salary to training expenditure. Eighty per cent of her salary for 2014/15 would amount to over $116,000. For the period from 1 July 2015 to 31 December 2015, it would amount to almost $65,000. The Tribunal is willing to accept that training of the business’s Australian employees is a key part of the job of Mr Kerfoot and that at least an element of his wage could be considered as expenditure relevant to the training benchmark.
The 1% training benchmark for 2014/15 would require expenditure of approximately $45,097. The 1% figure for the period from 21 April 2015 to date would amount to approximately $38,350. The Tribunal accepts that the relevant expenditure on Ms Shearing alone would amount to well in excess of 1% of the payroll of the business. Relevant expenditure on Mr Kerfoot would be in addition to this. The Tribunal accepts from the documentation that has been provided that substantial amounts have been paid to the Blackburn Family Trust. While it is possible that some or all of these amounts are in respect of training, the Tribunal has difficulty identifying this from the documentation that has been provided. However, having regard to the expenditure on employment of persons to train the business’s Australian employees, it is not necessary to make a firm finding in this regard. The Tribunal accepts that the company meets the benchmarks for the training of Australian citizens and permanent residents specified in the relevant instrument. In this regard, the Tribunal notes that the Department approved the company as a standard business sponsor on 21 April 2015. This suggests that the Department was satisfied that the requirements of r.2.59(d) were met at that point. The Tribunal has considered all the documentation before it and similarly concludes that the company meets the training requirements that it was required to meet under r.2.59(d).
In all the circumstances, the Tribunal finds that the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
This issue formed the basis for the delegate’s refusal of the nomination. The evidence before the Tribunal indicates that, on 17 February 2014, Classic Holiday Club was sanctioned under s.140M(1)(c) of the Act for failure to comply with sponsorship undertakings required of an approved business sponsor for temporary visas. The sanction imposed was a 12-month ban on the employer sponsoring more people for Subclass 457 visas.
The Tribunal has before it the file relating to the sanction imposed on 17 February 2014 and the related monitoring by the Department. The Department identified breaches in a number of areas. With regard to r.2.79, it was not satisfied that the company had met the obligation to ensure equivalent terms and conditions of employment in relation to two of the five Subclass 457 visa holders who were included in the monitoring audit. It found that one visa holder was underpaid $18,594.04, while the other was underpaid by $10.00. Further, the Department was not satisfied that the company kept records in accordance with r.2.82. The Department found that the company did not keep bank records or any other third party independently verifiable evidence of the wages paid to individual visa holders during the full monitoring period and did not keep verifiable evidence of cash payments to one visa holder. The Department also found that the company had failed to comply with r.2.84 in that it failed to notify the Department of the cessation of employment of a Subclass 457 visa holder. It was noted that the company had changed its internal compliance processes and guidelines in this regard. The Department also found that the company had failed in its obligations under r.2.86 as one sponsored visa holder had worked outside their nominated occupation. The Tribunal notes that the Department observed that the company had been cooperative during monitoring. It found that the company had been upfront and transparent in its dealing with the Department, and had acknowledged deficiencies in its processes and payroll system. The Department was satisfied that the company’s failure to satisfy the relevant obligations was reckless and that it had subsequently demonstrated a better understanding of its responsibilities under the sponsorship obligations. It referred to steps taken to rectify the failure and processes implemented to ensure future compliance.

In pre-hearing submissions to the Tribunal, it was submitted that the applicable legislation contemplated “adverse information” as being information only relevant to suitability as a Subclass 457 sponsor, and not as information relevant to suitability as a Subclass 186 sponsor. It was submitted there was currently no “adverse information” before the Tribunal. It was submitted that, while the company had been the subject of administrative action by a competent authority in the previous three years, this information was now not relevant to the company’s suitability as an approved sponsor. It was submitted that this information had been taken into account when the Department most recently approved the company as a standard business sponsor on 21 April 2015. It was submitted that the relevance of the information was now spent.
The Tribunal has had regard to these submissions and to the definition of “adverse information” in r.1.13A. Even if it is the case that the relevant definition is referring to information relevant to a person’s suitability as a Subclass 457 sponsor, the Tribunal considers that the information in relation to the sanction imposed on the company is clearly information that is relevant in this respect. It remains of relevance notwithstanding that the Department made a decision on 21 April 2015 to approve the company as a standard business sponsor. The Tribunal finds that the sanction imposed on 17 February 2014 on the basis of the breaches found by the Department constitutes “adverse information” in accordance with the definition in r.1.13A.
The Tribunal has considered whether it is reasonable to disregard the adverse information. In pre-hearing submissions, attention was drawn to the fact that the company had been found on 21 April 2015 to be suitable to be an approved Subclass 457 sponsor. It was also submitted that, through subsequent monitoring by the Department between May and July 2015, the company's continued suitability as a sponsor had been confirmed by the Department through a 'satisfactory' monitoring outcome. It was submitted that the Department was now also permitting the company to nominate Subclass 457 visa applicants again, after its 12-month bar had lapsed. As noted above, the Tribunal has been provided with documentation showing that the company was approved as a standard business sponsor on 21 April 2015. It was also provided with documentation showing that the Department had commenced monitoring of the company on 26 May 2015 and that the Department had advised on 27 July 2015 that the monitoring of the company had been concluded with a “satisfactory” outcome. The relevant letter of 27 July 2015 stated that the Department was satisfied that the sponsor had complied with the program requirements and that no further action was necessary. The Tribunal was also provided with a letter from the Department confirming that Michael Kerfoot had been granted a Subclass 457 visa on 10 September 2015 on the basis of sponsorship by Classic Holiday Club. The submissions also made reference to the impact on the nominee.
At the hearing, Mr Stephenson acknowledged that the company had been placed under a sanction for a period. However, he stated that they had subsequently been audited and reinstated with a clean bill of health. A Subclass 457 visa application had subsequently been approved. Mr Stephenson stated that they had recognised that there were things that needed to be corrected at the time the sanction took place and had corrected those things. Mr Stephenson submitted that the company had addressed the matters that gave rise to the sanction. He stated that they had paid the price. He stated that the nominee through no fault of her own was now stuck in limbo. He referred to her as a very productive employee. Ms Passinisi referred to having provided the Department with bank records in the course of getting the new approval as a standard business sponsor. She referred to being able to provide the relevant records. Reference was made to having changed internal systems and management of the payroll, and to recognising the significance of the base salary. Mr Stephenson acknowledged that errors had been made in the past and indicated that there was now a focus on the payroll in terms of the 457 visa holders. Ms Passinisi also stated that, whenever a Subclass 457 visa holder left, they notified the Department by e-mail. She stated that the sanction had been put on them for a year and they had dealt with it. They had been monitored.
In his letter of 20 January 2016, Mr Stephenson emphasised that the company had taken the February 2014 sanction most seriously. He stated that this had triggered a major overhaul in the company’s policies and procedures. He stated that they had reviewed how they met their overall obligations and how they administered their sponsored employees. They had drawn up and implemented a new Visa Sponsorship and Employment Policy (a copy of which was provided to the Tribunal) and appointed Ms Passinisi to be responsible for this. Mr Stephenson also referred to the company’s investment in training and to the recent satisfactory audit. He stated that the company was very conscious of its legal and regulatory obligations. Mr Stephenson also provided information on the “Classic Work Program & Future Inspiration School Based Traineeships” and information relating to the company’s involvement with Volunteering Gold Coast. He made reference to the impact that an adverse decision would have on the company.
The Tribunal has carefully considered all the evidence. It considers that the breaches on which the relevant sanction were based were serious matters. However, it is of some relevance that the Department took the view that the breaches were reckless and was satisfied at the time of applying the sanction that the company had demonstrated a better understanding of its obligations. The sanction in relation to sponsorship for Subclass 457 visas has now expired. At the time the sanction was imposed, the Department recorded a number of steps the company had taken to rectify the breaches and a number of measures it had taken to address the issues giving rise to the breaches. Mr Stephenson has given further evidence about the steps the company has taken in this regard. The evidence indicates that the company was approved by the Department as a standard business sponsor in April 2015 and that monitoring of the company conducted in 2015 produced a satisfactory result. This provides an indication that the steps that were identified to address the earlier issues have in fact been effectively implemented. It suggests also that the company has displayed an improved understanding of its sponsorship obligations and a commitment to meeting those obligations. Having regard to all the circumstances, the Tribunal concludes that it is reasonable to disregard the relevant adverse information. There is no suggestion that there is any other adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
Mr Stephenson’s evidence at the hearing was that the company is compliant with laws relating to workplace relations. There is no evidence before the Tribunal to indicate that that the applicant company does not have a satisfactory record of compliance with workplace relations laws. On the available evidence, the Tribunal accepts that the applicant has a satisfactory record of compliance with workplace relations laws of the Commonwealth, and of each State where the applicant operates a business and employs employees in the business. Accordingly, the requirement in r.5.19(3)(h) is met.
Conclusion
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Don Smyth
Senior 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
(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
(c)either:
(i) both 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)the nominator has met the training requirements that the nominator was required to .meet under:
(i)       paragraph 2.59(d) or (e); or
(ii)      paragraph 1.20D(2)(c);
for the purpose of approval as a standard business sponsor; 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.

[2016] AATA 3185

9 February 2016

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