1420334 (Migration)

1420334 (Migration) [2016] AATA 3251 (12 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  B&G Export Corporation Pty Ltd
CASE NUMBER:  1420334
DIBP REFERENCE(S):  BCC2014/2049453
MEMBER:David Dobell
DATE:12 February 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination
Statement made on 12 February 2016 at 11:29am

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 2 December 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 20 August 2014. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) or r.5.19(4)(a)(ii)(e) of the Regulations because the employer has not identified a need and the terms and conditions of employment will be less favourable.
Bernard Le Boursicot (hereafter ‘the applicant’), sole director of the applicant company, B&G Export Corporation Pty Ltd ( hereafter ‘B&G’), appeared before the Tribunal on 3 February 2016 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CLAIMS AND EVIDENCE
On the Department file is the following relevant documentary evidence:
- P39 Employment agreement- dated 1 August 2014
·Training receipt, $2,600, 4 people, invoice receipt issued 14 August 2014, for training later that financial year
·TAFE Sydney Institute receipt, 19 August 2014, $184.000 Benchmark A contribution
·B & G website information
·Company organisation chart- shows 5 employees (apart from the applicant), 3 Australian citizens, one 457 holder and the nominated person
·Business Plan relating to this position
·Evidence showing that BILAT Pty Ltd owns offices of business and rents these to B&G
·Rates notice for BILAT Pty Ltd
·BAS, B&G, financial year 2013-14
·Financial Statements 2013 (including the previous year), showing:
o    Salaries- $204,000, $187,000 (2012)
o    Current assets- cash $525,000, $519,000 (2012)
o    No training specific line item
·Company extracts, showing the applicant as sole director and shareholder of B&G
·Nomination application, stating:
o    There are 4 Australian employees, one foreign employee
o    $2,600 was spent on training
o    $184 was given to TAFE industry fund
The Department’s decision record stated in summary:
- Not satisfied that there is a genuine need for the nominated position of overseas investor manager (business liaison officer)
- Considers the position should be classified as Financial Investment Advisor (ANZSCO 222311)
- The salary of $186,000 has been selected to avoid the English language requirement
- Conditions are not ‘no less favourable’ to the nominated employee
- Thus r.5.19(4)(a)(ii) and (4)(e) are not satisfied
On the Tribunal file prior to hearing was the following:
Representative submission 8 December 2014 with review application, stating:
·     The position relates to the development of a new business and as the project is about to be launched, need will arguably be demonstrated and evidence will be provided
·     The nominated employee actually has good English skills- he has ‘competent English’, as shown in IELTS test results of 29 October 2014
Representative submission 2 February 2016, with:
·     Financial Statements 2015 (including 2014), showing:
o    Salary- $250000, $269,000 (2014)
o    Current assets, $50,000, $150,000 (2014)
o    Training- no specific line item
·     Company tax return 2015
A copy of the applicant’s IELTS test results of 29 October 2014 was provided at hearing. The representative said he had provided this to the Tribunal earlier. [The Tribunal later noted it had been provided earlier but a copy had not been placed on the file.]
At the hearing, the applicant told the Tribunal that there are 6 people working at B & G as per the organisational chart provided to the Department, including him.
The Tribunal asked who ‘Keith’ was, being mentioned on their website as a significant person there. He is a business partner who also receives dividends from B & G. Keith owns another company, Kelloy International Pty Ltd, of which B&G owns 45%.
The Tribunal noted that this business proposition appeared to be in a different direction to meat export. He said that he exports to one particular province in China, Jiangxi Province, and just to one or two cities there. In his meat export work he had come across many Chinese who have earned their money legitimately and have a few million dollars and want to invest in Australia, or buy property, or start businesses here, and/or want to migrate here. This was where the idea came from and he approached the nominated employee “Joe”.
“Joe” has worked for him for 12-13 years, assisting him in meat export, and was born in that Province, so has good contacts there. He presently works in China as Assistant to the CEO of Hyatt.
The Tribunal asked whether this would be a new company for a new business. He said it would be a part of B&G, just like it owns real estate assets separately now.
As to the salary, he said they settled on that figure so as not to have to worry about the English requirement. They did not do it to avoid the English requirements per se- it was just easier. However, the IELTS test result from October 2014 shows that he has competent English. It is a genuine salary for that position.
The Tribunal asked how this position would be funded in the short–medium term, before income is generated by this person. He said that he has a number of companies, and Juketop Pty Ltd (hereafter ‘Juketop’) has substantial assets, stating that $1 million will be transferred into B&G for this purpose. The Tribunal noted that such evidence is important in the context of the requirement relating to whether the company can afford to employ the nominated person for 2 years or more. He will provide clear evidence of this.
He said the salary would be the main expense of this position, but of course international travel would be high also.
The Tribunal then turned to the position and how it might best be classified as an occupation. He confirmed that the duties have not changed since nomination lodgement.
He said that the nominated person is an excellent communicator who can bring people together. He has very good relations and interactions with companies and government officials and Ministers there. He said in his 40 or 50 years of experience in business he is one of the best. His cultural and language skills are of high value.
The Tribunal said it was looking at ANZSCO and whether liaison officer was the most appropriate occupation classification. It said it was also looking at the occupation stated by the delegate, financial investment advisor, and also looking at lower skills occupations such as independent business broker. It had to determine what kind and level of skills this position requires, on the evidence before it.
However, it noted that all of these occupations were listed in the relevant instrument for the purposes of r.5.19.
The applicant said he left it up to the representative to find the best occupation category and the representative said that he chose it because it was close to that of migration agent, and that the person would be a liaison officer specialising in business, and as such would be referring people to him, and to financial advisors, and others.
Turning to the first regulation at issue, (d), the Tribunal said that it required evidence of liquid funds being available so as to finance this position at a salary of $186,000 per year plus superannuation. It accepted from the employment offer document that it was for at least 2 years and there was no express exclusion of continuation.
Turning to (e), the Tribunal said that the employment offer met the requirements of, and referred to, the National Employment Standards.
As to the salary of $186,000 p,a, the Tribunal said that this is higher than most salaries for nominations and that, given there is no Award to cover this type of employment, if genuine it would accept on the face of it that it would be no less favourable than that paid to Australian citizens or permanent residents.
As to (h)(i)(A), the Tribunal said that it had discussed this issue earlier and would come to a decision on the evidence before it.
As to (h)(i)(B), the Tribunal said that it needed further evidence of training undertaken in accordance with the Benchmark. To this end, it wished to see the first two BAS for this financial year, 2015/16, and also, training expenses for the year so far. The applicant said that training has been paid for and is scheduled for March 2026. This cost $2,750.
The applicant said that to be honest he is getting professional training because it is a legal requirement for standard business sponsorship and the subclass 457 visa, and for this nomination, and that he is not sure what it is teaching his employees. He thought he could do it better. The Tribunal said it was open to him to give 2% to an industry training fund.
The Tribunal said it also needed to see evidence of past training compliance, so wanted to see expenditure for the 2013/14 year also. He said this would not be a problem as it was required for the standard business sponsorship.
After the hearing the following documentary evidence was provided:
·Submission by representative
·B&G, letter of engagement (variation), 5 February 2016, varying the commencement date of the contract, signed by the nominee, 10 February 2016
·Chart summarising B&G’s Payroll and Training Expenses
YR      Payroll           Paid training
o2013     $224,065         $2,500
o2014     $294,758         $3,298
o2015     $274,206         $2,750
·Profit & Loss Statement, 2014
·Payroll Summary printout
·Sydney TAFE Institute Receipt, 18 August 2015, Benchmark A Contribution, $698
·PD Training, Invoice/receipt, 2013, $2,500
·PD Training, Invoice/receipt 2014, $2,600
·PD Training, Invoice/receipt 12 August 2015, $2,750
·Juketop Pty Ltd Financial Report, 2015
·Valuation report, 4 March 2013,
·Sydney TAFE Institute, Receipt, 8 February 2016, Benchmark A Contribution, $2,675
·B&G BAS
·Juketop BAS
·ASIC Company Extract printout, Juketop
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision record. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)(i) and r.5.19(2)
Regulation 5.19(4)(a)(i) requires that the application for approval must comply with r.5.19(2), which requires that the application for approval be in the approved form and must be accompanied by the prescribed fee. The Tribunal is satisfied that this is the case here.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(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 Tribunal is satisfied this provision is met as the Department issued an acknowledgement of nomination application received and noted the application was being processed.
The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. The delegate determined that the applicant did not meet this requirement, as there was no ‘genuine need’ for the nominated position.
The delegate considered that the position was ambiguous and largely speculative and without specific detail to indicate the likelihood of success in its claims, and there was no evidence of any contractual agreements, or of a genuine intention of the company to engage in business.
The Tribunal notes Department policy on this requirement, which states in part:
13.2    Need for a paid employee
The assessment of the 'need for a paid employee' comprises 2 parts:
•    establishing the need for an employee (that is, there is a genuine vacancy for the nominated position) and
•    ascertaining that the relationship between the nominator and the nominee is that of employer and employee.
The Tribunal considers that this provision is a procedural requirement only. It merely requires that the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, which the company has clearly done in the application.
In support of such an interpretation is the wording of the similar requirement in relation to regional matters. However, this states clearly that there must be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B).
This provision clearly states that genuine need must be established in relation to regional matters. However there is no such requirement in relation to non-regional matters, such as this.
If r.5.19(4)(a)(ii) was concerned with establishing a genuine need, and applies to both regional and non-regional nominations, then r.5.19(4)(h)(ii)(B) would have no work to do in relation to regional matters.
The Tribunal is prepared to follow Departmental policy, but only where it is consistent with the law. In this case, the Tribunal does not consider the policy is consistent with the wording of the requirement in r.5.19(4)(a)(ii).
However, the Tribunal considers that this may properly addressed at r.5.19(4)(h)(i)(A), which relevantly states that:
the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph
The Tribunal needs to be satisfied that the tasks of the position, whatever it may be titled as, will, firstly, be performed here, thus being a test of genuineness, and second, that they correspond to an ANZSCO occupation listed in the relevant instrument. This will require the Tribunal to determine what the relevant occupation classification is here, given the tasks of the position.
This will be properly addressed later in this decision record.
In any event, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The Tribunal is satisfied from the oral and financial documentary evidence before it that this is the case.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Accordingly, the requirement in r.5.19(4)(c) does not apply here.
Term of employment of the visa holder: r.5.19(4)(d)
From examining the offer of employment dated 1 August 2014 signed by both parties, the Tribunal is satisfied that the applicant agrees to the nominated person being employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
However, as raised at hearing, from the financial statements provided, the Tribunal has concerns about whether or not the company can afford to pay such a high salary for the required 2 year minimum. The Tribunal noted the declining cash reserves of the applicant company and that these would not be sufficient to cover this employee for 2 years should there be no income generated by him.
The delegate noted this concern in their decision record, stating that their salary would be ¾ of the total payroll for existing staff in the 12 months prior to lodgement of the nomination.
At the hearing, the applicant acknowledged this concern and said that there would be a cash inflow from a related company Juketop. The Tribunal has examined the latest financial statements relating to this company. Whilst this company has considerable property and other financial assets as non-current assets, the Tribunal is not satisfied on the evidence before it that these would necessarily be available in the short-medium term to fund this position. However, it is satisfied that the applicant, as joint Director with his wife, would be able to access the liquid or current assets of this company, then totalling $584,000, to fund the new position in the short to medium term.
The Tribunal is thus satisfied regarding the applicant’s ability to pay the nominee the agreed salary for at least 2 years. Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(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 Tribunal is first satisfied that the offer of employment has the same general terms and conditions applicable to all employees in Australia, under the National Employment Standards.
As to the salary of $186,000 pa, the issue is whether this is a genuine salary which the applicant will pay, having determined above that they have the ability to pay.
After talking to the applicant, and seeing the financial statements of the company, and the related company, Juketop, the Tribunal is satisfied that this is a genuine position and that the applicant will pay this salary to the nominated person, despite this being a somewhat speculative venture.
The Tribunal accepts that the nominated person is absolutely central to the success of this business venture, and that the business cannot really commence without him.
The Tribunal considers that success in this venture is not guaranteed, as in any business venture, but it accepts that the applicant has put a strong business case based on his own dealings in China in meat, and using the contacts and communication skills of the nominated person.
As to the delegate’s view that this is being paid to avoid the IELTS test, the Tribunal considers that there is some truth to this, but that it was agreed to as a matter of convenience rather than motivated by an intention to avoid the English requirements. In this regard, the Tribunal notes the IELTS test results which appear to give the nominee ‘competent English’.

As to the view that this salary is ‘no less favourable’, the Tribunal did not follow the logic of the delegate here. The Tribunal considers it extremely difficult to come to a view as to what an Australian citizen or permanent resident would be paid here, as it is not a common type of position. Accordingly, as the Tribunal said at hearing, given the relatively high salary amount, it is prepared to accept on face value that it is no less favourable.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) 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.
The Tribunal has no evidence or information before it that there is any adverse information here. Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
The Tribunal has no information or evidence before it that there has been any breach of workplace relations laws by the applicant company. Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position, and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring in this case that:
- the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister
- specified training benchmarks will be met
As to whether the tasks will be performed ‘in Australia’, the Tribunal finds that the nominee will spend a large amount of time in China in the fulfilment of his duties, given the nature of this position, but that time there does not mean that he is not performing the tasks in Australia overall. The applicant has said he will be based here in his Sydney office and the Tribunal accepts this.
As to whether the tasks of this nominated position genuinely correspond to an occupation specified by the Minister, the Tribunal turns to the tasks as set out in the nomination:
Position description
Title: overseas investor manager
Occupation: business liaison officer
1.Establishes and facilitates communications between foreign investors, particularly Chinese, and Australian business, community and government organisations
2.Coordinates contacts between clients and stakeholders; state authorities, financial advisers, business partners, migration consultants and other relevant organisations and professionals
3.Advises clients on the development, coordination and implementation of plans in a culturally sensitive manner
4.Reviews Australian market and business opportunities for potential Chinese investors in Australia
5.Promotes the company services to potential Chinese clients through networking and referral
The Tribunal notes that from the relevant instrument, IMMI 13/066, this occupation is specified. However, the Tribunal will have to come to its own view as to whether the tasks of this position correspond to this occupation.
The tasks as listed in ANZSCO under Unit Group 2249 for liaison officer, which the Tribunal uses as a guide, are as follows:
UNIT GROUP 2249 OTHER INFORMATION AND ORGANISATION PROFESSIONALS

This unit group covers Information and Organisation Professionals not elsewhere classified.
It includes Electorate Officers, Liaison Officers, Migration Agents (Aus) / Immigration Consultants (NZ) and Patents Examiners.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Registration or licensing may be required.
Occupations:
224911 Electorate Officer
224912 Liaison Officer
224913 Migration Agent (Aus) / Immigration Consultant (NZ)
224914 Patents Examiner
224999 Information and Organisation Professionals nec

224912 LIAISON OFFICER
Establishes and facilitates communication between different community groups, organisations and governments.
Skill Level: 1
Specialisations:
Aboriginal Liaison Officer
Business Liaison Officer
Community Liaison Officer
Disability Liaison Officer
Police Liaison Officer

…

224999 INFORMATION AND ORGANISATION PROFESSIONALS NEC
This occupation group includes Information and Organisation Professionals not elsewhere classified.
Skill Level: 1
Occupations in this group include:
Electoral Officer
Forms Designer
Knowledge Manager
Lobbyist
Museum Registrar
The delegate was of the view that the tasks of this position were probably best described as the occupation of financial investment advisor. In this regard ANZSCO states:
UNIT GROUP 2223 FINANCIAL INVESTMENT ADVISERS AND MANAGERS
FINANCIAL INVESTMENT ADVISERS AND MANAGERS develop financial plans for individuals and organisations, and invest and manage funds on their behalf.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Registration or licensing may be required.
Tasks Include:
ointerviewing prospective clients to determine financial status and objectives, discussing financial options and developing financial plans and investment strategies
omonitoring investment performance, and reviewing and revising investment plans based on modified needs and changes in markets
orecommending and arranging insurance cover for clients
oarranging to buy and sell stocks and bonds for clients
oadvising on investment strategies, sources of funds and the distribution of earnings
osetting financial objectives, and developing and implementing strategies for achieving the financial objectives
omanaging funds raised from personal superannuation savings policies and unit trusts
oassisting in meeting superannuation compliance requirements
odirecting the collection of financial, accounting and investment information and the preparation of budgets, reports, forecasts and statutory returns
omay refer clients to other organisations to obtain services outlined in financial plans

Occupations:
222311 Financial Investment Adviser
222312 Financial Investment Manager

222311 FINANCIAL INVESTMENT ADVISER

Alternative Title:
Financial Planning Adviser

Develops and implements financial plans for individuals or organisations, and advises on investment strategies and their taxation implications, securities, insurance, pension plans and real estate. Registration or licensing may be required.
Skill Level: 1
…
After discussing this with the applicant at the hearing, the Tribunal is of the view that this position is more of a high level’ go-between’, where once a Chinese person is introduced to a business or investment in Australia and wishes to proceed, this person will then refer them to the appropriate professionals here. However, they will need excellent general knowledge in all areas to best assist the client.
Thus, they are not going to be developing and implementing financial plans for Chinese investors; rather this person will be referring them to accountants or financial advisors to provide this assistance. Similarly with migration and legal advice; they will be referred to the appropriate professionals.
The Tribunal considered whether the skills level for this position would appropriately be described as skill level 1, and not some lower level, which might tie these tasks to a different profession, such as real estate agent or representative, or business broker.
The Tribunal accepts from the oral evidence that this person will need high level negotiation and communication skills, which would extend beyond those which may be held in such other occupations and that a skill level 1 classification is appropriate.
Returning to the Unit 2249 occupations, the Tribunal is satisfied that this position would best fit under this heading and that it is a matter of seeing which ANZSCO occupation best fits the tasks.
The Tribunal can see how this position might fit under liaison officer, but that it might also fit, by exclusion from liaison officer, under information and organisation professionals nec.
Whilst business liaison officer is listed as a specialisation under liaison officer, the Tribunal is not satisfied that ‘business’ or profit-making is the actual emphasis of any liaison officer- rather it is on ‘communications’, and hence is an occupation where employment is usually funded by governments in order to improve access to services.
Therefore the Tribunal considers that the most appropriate descriptor here is 224999 -information and organisation professionals nec. The Tribunal notes that this occupation is listed in the relevant instrument.
As to whether there is a genuine need for this position, the Tribunal accepts that the position is speculative and likelihood of success is not guaranteed, as stated by the delegate. However, the Tribunal does not consider that this means there is not a genuine need. The applicant has put a strong business case, and is prepared to put his own companys’ money up for it, and having been successful in business for 40 to 50 years it must be accepted that he recognises a good business opportunity when he sees one.
The Tribunal recognises the need for connections and contacts in doing business in China. The term Chinese term guanxi best describes this relationship - see org/wiki/Guanxi ). The applicant has been dealing with the nominee for over 10 years in his meat export business and must be satisfied that he has the right contacts in business and government in the Chinese province in question.
Thus the Tribunal is satisfied that the applicant meets r.5.19(4)(h)(i)(A).
Turning to the training requirements, the Tribunal was first satisfied on the oral evidence that this position was to be part of a new division of an existing business and not a new business.
Hence the Tribunal must be satisfied that the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing. The relevant extracts from the instrument, IMMI 13/030, are as follows:
The business is not required to demonstrate that they are an industry leader in training.
The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.
The training benchmarks for an established business are:
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 Tribunal considers it appropriate in this case to assess training expenses in each financial year. The relevant financial evidence as to payroll as provided by the applicant is stated to be as follows:
YR      Payroll
·2014     $294,758
·2015     $274,206
The 2015 financial statement states $250,417 for salaries and $23,789 for superannuation for 2014/15 and $269,167 for salaries and $25,591 for superannuation for 2013/14. The Tribunal takes these financial statements as the best reflection of the actual payroll expense amounts. One percent is $2,742 and $2,947 respectively and hence the above payroll figures are accurate.
The BAS provided for the first six months of 2015/16 shows salaries as around $120,000, so an estimate of $240-$250,000 for salaries for this year would appear accurate, so 1% would be around $2,400-$2,500.
The evidence for training expenses in 2013-14 is the PD Training, invoice/receipt, 2014, for $2,600. Whilst this is under the required 1%, the applicant and his representative have stated they ‘reviewed’ training expenditure in August 2015 and on discovering an underpayment, made a Benchmark A contribution to TAFE. The Tribunal considers that, in principle, paying ‘double’ as an A contribution is appropriate in the circumstances in order to make up any small Benchmark B shortfall in a year. Thus $2,600 plus $349 equals $2,949. Thus the applicant meets the 1% benchmark once the additional payment to Sydney TAFE Institute Benchmark A Contribution for $698 is taken into account.
The evidence for training expenses in 2014-15 is the PD Training, invoice/receipt, 2015, for $2,750. This meets the 1% benchmark of $2,742 for that year.
The evidence for training expenses in the current 2015-16 year is the Sydney TAFE Institute, receipt, 8 February 2016, Benchmark A Contribution, for $2,675. Of course, in practice, the applicant has until the end of this financial year to meet any training obligations for this current year.
Considered overall, the Tribunal accepts that the business has shown that training has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents and is related to the purpose of the business.
Thus the applicant company meets the relevant training benchmarks and thus satisfies r.5.19(4)(h)(i)(B) and hence r.5.19(4)(h)(i) as a whole.
Hence, based on the findings above, the Tribunal is satisfied that the applicant meets all the relevant 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.
David Dobell
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.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)    directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)    the terms and conditions of the employee’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)     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
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)    both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)    all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2016] AATA 3251

12 February 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal