1509486 (Migration)

[2016] AATA 3401

1509486 (Migration) [2016] AATA 3401 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DM Auto Co Pty Ltd

CASE NUMBER:  1509486

DIBP REFERENCE(S):  BCC2015/249054

MEMBER:Bruce Henry

DATE:18 February 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 18 February 2016 at 4:58pm

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 23 June 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 23 January 2015. 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. Somewhat surprisingly, however, the delegate assessed the application against the requirements of r.5.19(4), although those requirements relate to the Direct Entry nomination stream.

4. The delegate refused the application on the basis that the nomination did not satisfy r.5.19(4)(d) of the Regulations because they were not satisfied that the nominating business, DM Auto Co Pty Ltd (DM Auto) would be able to provide the full-time permanent position to the nominee as described in the application.

5. Ms Jennifer Ah-Wong, who described herself as the applicant company’s Administration Manager, appeared before the Tribunal on 8 January 2016 to give evidence and present arguments on behalf of the applicant.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 of r.5.19(3) must be met.

2. The applicant provided to the Tribunal a copy of the decision record of the delegate which states:

   The nominator, DM AUTO CO PTY LTD, lodged a nomination application online on 23 January 2015 in relation to the position of 'Sales and Marketing Manager 131112'. In the application, the nomination type is listed as 'Temporary Residence Transition' and the application identified the nominee as, Youmei LU (19/02/1979).

   The nominator confirmed through its submission that the nominated position is currently occupied by the nominee on a 457 visa since 16 July 2012 with a salary of $93600 but has now been offered the total annual remuneration package of $180,076 and the employment will be fulltime permanent position for at least 2 years.

   The lodged online application form showed that the business currently employs one Australian citizens/permanent residents and 1 foreign employee. In the written submission the nominator has claimed that "besides Ms Lu, we also have and Australian administrative manager and another sales manager who is a permanent resident". The online form also showed $150743 spent on wages for the past 12 months and training expenditure of $1628.

   The documents attached to the online application include:

   ·Employment contracts for 457 visa and for the existing 186 visa application -Market Salary Analysis

   ·Finance Report for the year ended 30 June 2014

   ·BAS statements for 2014

   ·Payment summaries for the last two financial years of the nominee

   ·Evidence of staff training

   To satisfy regulation 5.19(4)(d), the nominator must establish its commitment and prove its ability to employ a nominee on a full time basis in the nominated position for at least two (2) years. The nominator must demonstrate such ability and commitment through its submissions, substantiated with supporting documents.

   I have assessed the nomination application based on the documents provided by the nominator to support its claims, together with information available to me from the department online database.

   In considering the applicant's financial ability to meet its undertakings, its balance sheet submitted was given consideration as it contain the details relating to sponsoring business's total income, profit/loss and net assets. This information provides a full picture of an applicant's financial position.

   As per the financial statement for the year ending 30 June 2014, the nominator has not provided any realistic evidence to demonstrate that they will be able to comply with the requirement of providing 2 years fulltime permanent position to the nominee. I have also, considered that in addition to the base salary of $180,076 the nominator is required to consider the additional costs (worker's compensation, superannuation, etc.) while nominating an employee.

   The financial statement of 2014 showed the profit by the business at the end of financial year is of $740.74. I gave little weightage to the nominator's claim in its submission that the business turnover has gone from of $220,380 in year 2013 to 337,413 in year 2014. The nominator has claimed that the turnover of the current financial year will be more than double of the last financial year.

   I am not satisfied with such financials for the year 2014 that the business has the capacity to meet all employment obligations in regard to employing the nominee for the period of at least two years with $180,076 as annual salary. I have considered the business submissions justifying the nominated salary and need for the position.

   Therefore, I am not satisfied that the business will be able provide the full-time permanent position to the nominee as described in the application, and pay an annual salary of $180,076 for at least the next two years.

   From the above assessments, I find that the business-nominator, DM AUTO CO PTY LTD, failed to meet the criteria at subregulation 5.19(4)(d).

   As DM AUTO CO PTY LTD to satisfy subregulation 5.19(4)(d), I find that it does not meet subregulation 5.19(4).

3. As pointed out above, the delegate incorrectly assessed the application against the provisions of r.5.19(4) rather than r.5.19(3). For the purposes of this review that error is of no import, as the Tribunal must assess whether the nomination meets the requirements of r.5.19(3).

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

1. 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 (r.5.19(3)(c)(i)); 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 (r.5.19(3)(c)(ii)).

2. The position for which the nominee has been nominated is ‘Sales and Marketing Manager’, ANZSCO Code 131112.

3. Information contained in the decision record of the Department, which was provided to the Tribunal by the applicant, indicates that the nominee, Ms Youmei Lu, was nominated by the applicant for the position of Sales and Marketing Manager (ANZSCO Code 131112) for the applicant. Information on the file also confirms that Ms Lu has worked in that position as the holder of a 457 visa since 16 July 2012.

4. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(c)(ii) is met.

Future employment of the visa holder: r.5.19(3)(d)

1. 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.

2. As noted above, this application is made on the basis that the applicant meets the requirement in r.5.19(3)(c)(ii). Accordingly, the requirement in r.5.19(3)(d) does not apply.

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

1. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made 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.

2. The relevant training benchmarks are found in IMMI 13/130[1], which specifies that for the purposes of r.2.87B(2) and 2.87B(3) of the Regulations the requirements relating to training that the person must comply with are listed at Schedule A. The benchmark on which the applicant seeks to rely is training benchmark B, which provides as follows:

   [1] F2013L01236, Specification of Training Benchmarks and Training Requirements (Paragraphs 2.59(d), 2.68(e), subregulations 2.87B(2) and 2.87B(3) and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I)), 28 June 2013, commenced 1 July 2013

   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.

   Expenditure that can count towards this benchmark includes:

   ·   paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy

   ·   funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy

   ·   employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

   ·   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

   ·   evidence of payment of external providers to deliver training for Australian employees

   ·   on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:

   ·the learning outcomes of the employee at each stage;

   ·how the progress of the employee will be monitored and assessed;

   ·how the program will provide additional and enhanced skills;

   ·the use of qualified trainers to develop the program and set assessments; and

   ·the number of people participating and their skill/occupation

   Expenditure that cannot count towards this benchmark includes training that is:

   ·delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’

   ·confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity

   ·only undertaken by persons who are not Australian citizens or permanent residents

   ·only undertaken by persons who are principals in the business or their family members

   ·only relating to a very low skill level having regard to the characteristic and size of the business.

3. Regulation 2.87B provides that a standard business sponsor must comply with the requirement in relation to training expenditure in each 12 month period commencing on the date of approval of the sponsorship and on the anniversary of that date. The applicant has provided the Tribunal with a copy of the approval of their standard business sponsorship for the nominee, which was on 12 July 2012.

4. The departmental file contains a number of documents submitted by the applicant to address this requirement, including:

   ·     The Profit and Loss accounts for the applicant for the 2013 and 2014 tax years showed a wages costs of $107,343.97 and $150,743.60 respectively. The same accounts showed training expenditure of $1342.28 and $ 1628.36 for the same financial years; and

   ·     Receipts for training expenditure dated 2 December 2014 for attendance by Lan Qin at training programs in Brisbane on 16 and 18 December 2014, for amounts totalling $880;

   ·     A document headed ‘Lan Qin’s training cost – from 16 Dec to 18 Dec 2014’ stating that in addition to $880 course fees the training expenditure included ‘petrol fee’ of $360 with the notation ‘from TSW to Brisbane’s petrol invoices forgot to ask’, ‘accommodation fee’ of $350 with the notation ‘shared rent with friend’, ‘parking fee’ of $15 and ‘meal fee’ of $150;

   ·     A flight itinerary and invoice from Virgin Australia in the name of Ms Aw-Yong for a flight from Townsville to Brisbane on 16 August 2013 at 6.00am, costing $226.70;

   ·     A flight itinerary from Jetstar in the name of Ms Aw-Yong for a flight from Brisbane to Townsville on 16 August 2013 at 4.20pm, costing $177.50;

   ·     Information on a Gold Coast Business Migration Forum to be held at Nerang on the Gold Coast from 10.30am until 12.15pm on 16 August 2013 which describes it as ‘a fantastic opportunity for migration agents in Australia to get some one-on-one-time with the country’s decision makers’;

   ·     A flight itinerary from Jetstar in the name of Ms Aw-Yong for a flight from Brisbane to Townsville on 6 October 2013 at 4.20pm, costing $176.00;

   ·     A flight itinerary and invoice from Virgin Australia in the name of Ms Aw-Yong for a flight from Townsville to Brisbane on 25 September 2013 at 8.35am, costing $169.00;

   ·     A booking in the name of Ms Aw-Yong for Sapphire Resort, South Brisbane, for 3 nights from 25 September 2013, costing $297.00;

   ·     An invoice from Legal Training Australia addressed to Ms Aw-Yong dated 3 August 2013 for ‘3 day Package Migration Conference 2013 Brisbane (10CPD)’ for $360;

   ·     A handwritten note headed ‘Financial Year 2012-2013 for Australian staff Jennifer Aw-Yong’ which claims as ‘Staff Training Expenses’ a total of $1628.36 made up of:

   o   $1160.91, said to comprise the $360 course fee from Legal Training Australia, $345 air fares (being $176 and $169), hotel expenses of $297, ‘food’ claimed as $150, and ‘taxi fare & train fare’ claimed as $100; and

   o   $467.45 for Gold Coast Business Migration Forum ‘free course’, said to comprise flights of $367.45 (being $226.70 and $177.50, less GST of 10%) and $100 ‘taxi & train fare’.

5. These documents were accompanied by a submission in support of the nomination which stated:

   We are a company dealing mainly with export of infant formula milk powder to Asian countries, particularly China. Recently, we have decided to diversify into another line of business — the supply of Chinese building materials and labour to the QLD building industry. Ms Lu has been working with us for more than two years now as Sales & Marketing Manager, and has performed her job outstandingly. The main asset she has brought to our company is her ability to network with Chinese suppliers and customers. In diversifying into the supply of Chinese building materials, we would require her to commit to an intensified work load to manage the building materials imports on top of the milk powder exports. We would like to submit an employer nomination application under the ENS (subclass 186) Temporary Residence Transition Stream in relation to Ms Lu's visa application for a permanent position with our company. The nominated position is:

   Sales & Marketing Manager

   1. The nominating employer is actively and lawfully operating in Australia, and business has grown over the years.

   Since Feb 2012, DM Auto Co Pty Ltd has started trading as DM Import/Export International Trading Co Pty Ltd in Australia. Please see the extract from the ABN Lookup website attached. Today, it has become one of QLD's stable import/export business, making a healthy gross profit annually. It recorded a turnover of $220,380 in the financial year ending Jun 2013 and $337,413 in the financial year ending Jun 2014. Please see Page 3 of the attached financial report by certified accountant, J Lin & Associates Pty Ltd. Extrapolating from the two recent BAS(Ju114-Sep14) and BAS(Oct14-Dec14), the turnover of the current financial year will more than double that of last financial year. Besides Ms Lu, we also have an Australian administrative manager and another sales manager who is a permanent resident.

   2. The nominating employer has fulfilled Training Benchmark B.

   The Profit & Loss Statement of 2012/2013 in the accountant's financial report states that our annual payroll for the financial year 2012/2013 is $107,343. In that financial year our company spent $1342 on training Australian citizens or permanent residents (which represents 1.25% of the payroll). The report also states that our annual payroll for the financial year 2013/2014 is $150,743. In that financial year, our company spent $1628 on training Australian citizens or permanent residents (which represents 1.07% of the payroll). Please see the accountant report and the training receipts attached.

6. At the hearing Ms Aw-Yong initially said that the company’s workforce comprised herself, Ms Lu (the nominee), and Ms Lan Qin. She said that the Director of the company is Mr Wong, and then clarified that the company retrenched Ms Qin in about January or February 2015.

7. Ms Aw-Yong said that the applicant had nominated Ms Qin for a subclass 187 visa also as a Sales Manager and she had arrived in Australia in May or June 2014. She said that Ms Qin, who had been based in North Queensland, had expertise in the baby formula marketing area that the applicant had been operating, and had been nominated to further develop this business. She said that it had become clear that the current nominee, Ms Lu, had much better prospects of improving the applicant’s business by focussing on the trade in building materials, and the company had decided to retrench Ms Qin and use the salary previously paid to her to increase Ms Lu’s salary.

8. The Tribunal asked Ms Aw-Yong whether the applicant was aware that it had committed to employ Ms Qin in regional Queensland for two years in applying for approval of her nomination. She said that they were aware of that, but had decided to shift the business’ focus to building materials, which were not Ms Qin’s area of expertise.

9. The Tribunal asked Ms Aw-Yong to explain the relevance of the claimed training expenditure to the applicant’s business. She claimed that the company had examined many different business opportunities and at the time before Ms Qin was employed had been interested in bringing Chinese tour groups to North Queensland. Ms Aw-Yong said that she was involved in this aspect of the business, and claimed that the training she had attended on business migration was for this purpose.

10. The Tribunal asked Ms Aw-Yong when the business had been involved in bringing Chinese tour groups to Australia, as the documents on file, including the company’s own submission referred to above, indicated that the business was involved in exporting infant formula milk powder to China before developing its current trade in building materials. She repeated that this was a possible business opportunity that the company had been examining.

11. The Tribunal notes that the applicant has provided two employment contracts for Ms Lu. The first, dated 10 March 2012, provides for her to work 20 hours per week for a salary of $800 per week, while the second, dated 30 June 2012, provides for her to work 38 hours a week for a salary of $93,600. These documents state in relation to the company’s business that ‘Company is in business of importing safety boots from China for sale in Australia and exporting Australia’s baby formula milk to China for sale there’. The ‘offer of a position’ produced to the Department with the application under review refers to a salary of $180,076 for ‘45 to 50 ordinary hours per week’, and states that ‘Currently, Company is importing building materials from China for sale in Australia and exporting Australia’s baby formula milk to China for sale there’.

1. The Tribunal also questioned Ms Aw-Yong about the inclusion of expenditure on travel and accommodation as training expenses. She responded that she had rung the Department and had been advised that such expenditure could be included as training expenditure under training benchmark B. The Tribunal indicated that it would consider this matter further, but that if training benchmark B did not allow for such items to be included, any advice to the contrary that she may have received from the Department could not affect the application of the law.

2. The Tribunal also advised Ms Aw-Yong that expenditure could only be considered as meeting the benchmark if the evidence showed that it was expenditure on training the business’s employees who are Australian citizens or Australian permanent residents at the time the expenditure occurred. She undertook to provide such evidence along with the evidence of expenditure.

3. The Tribunal received further documents from the applicant during the course of the review, including another handwritten note with attached documents purporting to evidence training expenditure by the applicant for the period from July 2012 to June 2013 totalling $1476.50. The attached documents relate to:

   ·     a course apparently attended by Ms Aw-Yong run by the Migration Institute Australia in January 2013. A receipt for $250 for this course, addressed to Ms Aw-Yong, Australian Advantage Migration and Visa Consultants, was provided;

   ·     a four hour language Mandarin course attended by Raelene Aw-Yong at the Institute of Modern Languages in February 2013. A receipt for $360 for this course indicates that Ms Raelene Aw-Yong paid for the course by cheque;

   ·     four nights accommodation for two adults in Brisbane, the receipt for $320 for which is made out to Ms Aw-Yong; and

   ·     two return flights from Townsville to Brisbane for Raelene Aw-Yong and Ms Aw-Yong leaving on 12 February 2013 and returning 19 February 2013, for a total cost of $550. The receipt is made out to Ms Aw-Yong.

4. An accompanying submission by Ms Aw-Yong states:

   ·     The company's directors are the nominee herself and her husband. They started this wholesale milk powder export business in Feb 2012 when the nominee was a student in Australia and found it profitable to export milk powder from Australia to China.

   ·     In the first two years of the business, the nominee needed assistance of a part-time Australian admin manager and another Chinese sales manager to help expand the business in China. This other sales manager was let go by the end of Dec 2014 as the nominee found she can adequately handle all the sales herself. After the admin system is now all set up, the part-time admin manager has also become redundant as the nominee can easily subsume the admin duties of the business. Thus going forward, the company will not need any other staff except for the nominee herself as its Sales & Marketing Manager, accountable to the other company director (as General Manager)…

   ·     The combined salaries paid during 2014/2015  was $156,620. The net profit was $24,912 (paid as directors fee of $24,000 and retaining profit of $912). Adding $156,620 and $24,912 gives $181,532 which will be adequate to pay the nominee's $180,076 salary should she commences on her new employment contract with the approval of her 186 visa.

5. Also produced after the hearing were documents apparently purporting to be extracts from Ms Lu’s work diary covering the period from December 2012 to January 2015. The Tribunal places no weight on this material which appears to have been produced contemporaneously with the submissions signed by Ms Aw-Yong to which it is attached, in that the format and writing style are identical.

Discussion of the evidence

1. As stated above, the applicant’s standard business sponsorship of Ms Lu was approved by the Department on 12 July 2012. As the Tribunal explained to Ms Aw-Yong at the hearing, r.2.87B requires the Tribunal to consider the applicant’s training expenditure in each 12 month period commencing on the date of approval of the sponsorship and on the anniversary of that date.

2. The evidence on this matter is unsatisfactory. The Tribunal does not accept that attendance by Ms Aw-Yong at migration agents’ training courses constituted expenditure by the applicant on training its employees on matters relevant to the business of the company. The material provided by the applicant as to the nature of its business states that it is engaged in import-export activities, relating to footwear, milk powder, and building materials.

3. While there is some reference to the claimed tour business in the ‘work diary’ for Ms Lu, the Tribunal does not regard those materials as reliable for the reasons outlined above. There is no reference to such activities in the various employment agreements or job offers for Ms Lu that have been produced or in the submissions made as to the business of the applicant company.

4. The Tribunal does not accept Ms Aw-Yong’s evidence that ‘visa training’ for her was related to the applicant’s claimed Chinese tour business. Her evidence at the hearing was simply not credible, and appeared to the Tribunal to be inspired solely by a desire to incorporate her own training as an expense of the applicant. Her evidence is at odds with her written submissions as to the nature of the business, both before and after the hearing, which again refer to the applicant’s business activities as relating to footwear, milk powder, and building materials.

5. The Tribunal notes that training benchmark B specifically excludes training that is ‘confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity. The Tribunal is satisfied that the Chinese tour business was never the ‘primary business activity’ of the applicant, and finds that even if it could be accepted as being one aspect of the business’ operations, this training could not be included.

6. In relation to the applicant’s training expenditure for the three years of the sponsorship, therefore, the Tribunal makes the following findings:

   12 July 2012 to 11 July 2013:   The migration agents course attended by Ms Aw-Yong was paid for by Australian Advantage Migration and Visa Consultants, and the language course attended by Raelene Aw-Yong appears to have been paid by her. The Tribunal is not satisfied that the claimed expenditure was paid for by the applicant. None of the claimed expenditure meets training benchmark B.

   12 July 2013 to 11 July 2014:   Expenditure on Ms Aw-Yong’s attendance at a Business Migration Forum and the course run by Legal Training Australia does not meet training benchmark B, as the training was not related to the applicant’s business. In any case, the forum was not a formal course of study. None of the claimed expenditure meets training benchmark B.

   12 July 2014 to 11 July 2015:   The payment of $880 for attendance by Lan Qin at training programs in Brisbane on 16 and 18 December 2014 was expenditure that meets training benchmark B. 

   The claimed costs associated with Ms Lan Qin’s attendance at the course, for travel, meals and accommodation, are not supported by evidence which the Tribunal regards as credible. In any event, such expenses do not appear to the Tribunal to fall within the expenses that can be claimed under training benchmark B. The benchmark refers to money paid for ‘formal courses of study’, or ‘payment of external providers to deliver training’, not to associated costs such as these.

7. In summary, then, the Tribunal finds that the only expenditure by the applicant during the period of the applicant’s most recent sponsorship approval that meets training benchmark B was the payment of $880 for Ms Qin to attend two courses in December 2014. The applicant therefore has failed to comply with its obligations relating to training requirements in each of the three completed years of the sponsorship.

8. The Tribunal must therefore consider whether it is reasonable to disregard the requirements: r.5.19(3)(f)(ii).

9. In considering this  matter, the Tribunal notes that the evidence of Ms Aw-Yong at the hearing, confirmed in her subsequent submission, is that the applicant intends to dispense with all Australian citizen or permanent resident staff should the nomination be approved, as that is the only way that the applicant can afford to pay the salary offered to Ms Lu.

10. The Tribunal also considers it relevant to take into account that while the training expenditure on Ms Qin meets the requirements of training benchmark B, that training was completed on 18 December 2014. Ms Aw-Yong’s post hearing submission states that Ms Qin ‘was let go by the end of Dec 2014 as the nominee found she can adequately handle all the sales herself’. As noted above, the evidence is that Ms Qin is the holder of a subclass 187 visa for whom the applicant had undertaken to provide employment for two years from her arrival in Australia in June 2014.

11. In the circumstances, the Tribunal does not consider that it is reasonable to disregard the requirements of r.5.19(3)(f)(i) for this applicant, as it does not consider that the business has demonstrated any commitment to training Australian citizens or permanent residents or that it has any intention of doing so in the future.

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

13. 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

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

Bruce Henry
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.