1503972 (Migration)

[2016] AATA 3620

1503972 (Migration) [2016] AATA 3620 (5 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Caleb Nominees (WA) Pty Ltd atf Caleb PBH Trust

CASE NUMBER:  1503972

DIBP REFERENCE(S):  BCC2014/2763473

MEMBER:Carolyn Wilson

DATE:5 April 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 05 April 2016 at 2:21pm

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 18 March 2015 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 20 October 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in 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 was not satisfied the business had the financial capacity to employ the nominee full-time for at least 2 years or that the size of the business warranted a Production Manager.

5. The applicant appeared before the Tribunal on 13 January 2016 and 11 March 2016 to give evidence and present arguments.

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

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

9. 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 reasonable to do so.

10. The relevant training benchmarks for an established business were either: recent expenditure to the equivalent of at least 2% of the payroll of the business in payments allocated to an industry training fund that operated in the same industry as the business (Benchmark A); OR recent expenditure to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business (Benchmark B).

11. The applicant’s most recent sponsorship approval occurred 6 February 2012 for a period of three years.  The Tribunal has presumed this was on the basis they met Benchmark B, as only evidence purporting to meet Benchmark B has been provided.  There is no evidence to suggest the applicant could meet Benchmark A.

12. The applicant provided limited evidence of their commitment to meet the training requirements, even though this was raised at the first hearing and in a follow up s.359(2) letter inviting further information.  The Tribunal acknowledges that the first hearing largely focused on the issue of who was the nominating employer, and its oral request to the applicant to provide evidence on meeting the training benchmarks appeared to have been overlooked in the post hearing submissions. 

13. In response to the request for information demonstrating they met the training requirement in their most recent sponsorship approval as a standard business sponsor, the applicant merely provided Profit and Loss statements and invoices for Caleb Nominees (WA) Pty Ltd ATF Caleb PBH Trust, which included amounts for ‘training’. The applicant submits that the expenditure on training amounts to between 1 and 2% for all relevant years when assessed against the payroll for Caleb Nominees (WA) Pty Ltd ATF Caleb PBH Trust. The Tribunal had a number of concerns about this, including what is in fact the total payroll for the sponsor, and whether the training expenditure is the type of expenditure that can count towards the training benchmark. 

14. The applicant has argued, and the Tribunal on further consideration has accepted, that the standard business sponsor in this matter is the legal entity Caleb Nominees (WA) Pty Ltd.  The applicant has provided evidence that Caleb Nominees (WA) Pty Ltd has a greater payroll than that just for the business operating under Caleb Nominees (WA) Pty Ltd ATF Caleb PBH Trust, as it also operated two other EmbroidMe franchises.  However, no evidence had been provided of the payroll and training expenditure for those businesses. 

15. Accordingly, the Tribunal invited the applicant to a further hearing to clarify the total payroll for the applicant, its total expenditure on training, and whether that expenditure met the training benchmark.  Despite putting in the hearing invite that this was an issue to be discussed at hearing, and that documentary evidence of the training relied upon should be provided prior to the hearing, no such evidence was provided.

16. Following the second hearing, the applicant conceded that Caleb Nominees (WA) Pty Ltd could not demonstrate that it met the training benchmarks during the period of the nominator’s most recent approval as a standard business sponsor. However they claimed it was reasonable to disregard r.5.19(3)(f)(i) because even though 2 out of the 3 years they did not expend enough on training to meet the training benchmarks, more had been spent in one year such as to amount to just over 1% when averaged over 3 years.

17. The Tribunal has considered the evidence provided by the applicant and finds they properly conceded they did not meet the training benchmarks during the period of their most recent approval as a standard business sponsor. They therefore do not meet r.5.19(3)((f)(i).

18. The Tribunal has considered whether it is reasonable to disregard r.5.19(3)(f)(i), but has concluded that it is not. The Tribunal makes this finding because it is not satisfied the applicant’s training expenditure is of the type covered by the relevant instrument. The core business of the applicant is providing products and service in the area of embroidery, uniforms and promotional products. However, the majority of training expenditure has been on their external bookkeeper, who as well as doing bookkeeping in the business was engaged to train staff in using accounting software. The applicant submits that the amount spent on training almost meets the training benchmark such that it would be reasonable to waive the requirement that it actually meets it. However the Tribunal is not satisfied that it does almost meet it, because that Tribunal is not satisfied the training expenditure is the type of expenditure that can count towards the training benchmark, as per the relevant Instrument. The Tribunal considers the majority of the training was confined to one area of the business, in an area that is not the primary business activity, and therefore is not expenditure that can be counted.

19. In all the circumstances the Tribunal finds it is not reasonable to disregard the requirements of r.5.19(3)(f)(i). The Tribunal therefore finds the applicant does not meet r.5.19(3)(f)(ii).

20. Accordingly, the requirement in r.5.19(3)(f) is not met.

21. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

22. The Tribunal affirms the decision under review to refuse the nomination.

    Carolyn Wilson
    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

    (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.