BAMIYAN RESTAURANT (Migration)

[2022] AATA 1724

BAMIYAN RESTAURANT (Migration) [2022] AATA 1724 (27 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  BAMIYAN RESTAURANT

REPRESENTATIVE:  Mr SUBENDRA VIMALARAJAH (MARN: 9904303)

CASE NUMBER:  1906293

HOME AFFAIRS REFERENCE(S):          BCC2016/3082157

MEMBER:W Frost

DATE:27 May 2022

PLACE OF DECISION:  Canberra

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

Statement made on 27 May 2022 at 1:05pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – cook – training requirements – contributions to hospitality scholarship fund – last contribution paid after department’s refusal decision but within 12 months after end of relevant period – legislative changes – nominee’s continuing employment in position – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulation 1994 (Cth), rr 2.59(d), 2.87B, 5.19(3)(f)(i)

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 Home Affairs on 5 March 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (Regulations).

2. On 16 September 2016, the applicant applied to the then Department of Immigration and Border Protection for approval of the nominated position of ‘Cook’ (Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 351411). The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The nominated position of ‘Cook’, is with Mr Haseeb Miazad, trading under the business name of ‘Bamiyan Restaurant’ (Nominator). The nominated position is to be filled by the nominee, Mr Ram Niwas, a current employee with the Nominator (Employee).

5. On 5 March 2019, the delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(f)(i) of the Regulations because they were not satisfied that the Nominator had fulfilled its commitment in relation to meeting its training requirements during the period of the Nominator’s most recent approval as a standard business sponsor.

6. On 18 March 2019, the Nominator applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.

7. The applicant appeared before the Tribunal on 20 May 2022 to give evidence and present arguments. The Tribunal received oral evidence from Mr Haseeb Miazad, representing the Nominator as the business name holder and also from the Employee, Mr Niwas.  

8. The Nominator and the Employee were also represented at the Tribunal hearing by their registered migration agent, Mr Subendra Vimalarajah.

9. 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

10. 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 reg 5.19(3), which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application must be compliant: reg 5.19(3)(a)

11. Regulation 5.19(3)(a) requires that the application for approval 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) of the Migration Act 1958 (Act). The application must also identify a relevant person who holds a Subclass 457 (Temporary Work (Skilled)) visa and an occupation listed in the ANZSCO.

12. The material before the Tribunal demonstrates that the application to the Department from the Nominator for approval of the nominated position was made in accordance with an approved form and accompanied by the fee prescribed in r.5.37. In addition, the application included a written certification from the applicant that they have not engaged in conduct in relation to this nomination that constitutes a contravention of s.245AR(1) of the Act, which provision prohibits asking for or receiving a benefit in return for the occurrence of a ‘sponsorship-related event’ as defined by s.245AQ of the Act. For these reasons, the Tribunal finds that the application was made in accordance with r.5.19(2), as required by r.5.19(3)(a)(i).

13. In relation to the requirements under r.5.19(3)(a)(ii) and (iii), the Tribunal notes that the application also identified a person, being the Employee, who at that time held a Subclass 457 (Temporary Work (Skilled)) visa to work in Australia granted on the basis of satisfying cl.457.223(4) (457 Visa). The application also identified an occupation in relation to the position that is listed in ANZSCO and has the same 4 digit code as the occupation carried out by the Employee holding the 457 Visa, being the occupation of ‘Cook’ (ANZSCO Code 351411). The application stated that there was no Australian employee in the businesses’ workplace doing the same work as the Employee. At the hearing, the Nominator confirmed that this was correct and told the Tribunal that the Employee had worked for the business as cook in a full-time capacity working 38 hours per week since he commenced employment with the business in 2014. Mr Miazad, on behalf of the Nominator, said that the Employee’s tasks include operating the restaurant’s kitchen, training kitchen staff and cooking meals every night, noting that the restaurant is open 7 nights a week and 3 days for lunch. Mr Miazad told the Tribunal that there was a need for the Employee to work in the position of cook in the business. He was described by Mr Miazad as being the ‘main engine’ of the business with a bright future. While not required under the applicable version of the Regulations for this application, for completeness, the Tribunal notes that it is satisfied that there is a need to employ the Employee to work in the nominated position with the business.

14. Given the above findings, the requirement in reg 5.19(3)(a) is met.

    Status of the nominator: reg 5.19(3)(b)

15. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

16. On 2 June 2014, the Employee was granted the 457 Visa. The Nominator was listed as the sponsor. The Tribunal is satisfied that this nomination for the 457 Visa was made under s.140GB of the Act. In 2014, the Department approved the Employee’s 457 Visa for a period of 4 years, that is, until 2 June 2018. In advance of the hearing, the Tribunal requested the Nominator provide the most recent business sponsorship approval in relation to the Employee. The Nominator provided a letter from the Department dated 22 July 2016, which provided notification of its approval as a standard business sponsor effective until 22 July 2021.

17. In this regard, the Tribunal is also satisfied, based on the evidence, that the Nominator did not, as the standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in its most recent sponsorship approval. Mr Miazad confirmed at the hearing that the Nominator did not operate any business outside of Australia.

18. Mr Miazad told the Tribunal at the hearing that the business was actively and lawfully operating in Australia as an Afghani restaurant in Sydney and has done so since 2011. Mr Miazad said Bamiyan Restaurant was the first to introduce Afghan cuisine in Sydney and has become very successful and well regarded. They are currently located at Five Dock. An extract from the records of the Australian Securities & Investments Commission dated 22 May 2017 lists the Nominator as having been registered since 14 June 2011. Based on all the evidence before the Tribunal, it finds that the Nominator has operated the restaurant since 2011.

19. Further in relation to the status of the Nominator, the Tribunal had documentary evidence of the Nominator’s financial position, including tax returns, Business Activity Statements, as well as the Nominator’s financial statements from financial years spanning 2017 to 2021. For example, in the financial year ended 30 June 2020, the Nominator’s total income was $422,812.28, according to its financial statements for that year. It also listed the expenses of salaries and superannuation in the amount of $188,204, with a net profit from ordinary activities before income tax of $37,338.76. In the subsequent financial year ending 30 June 2021, the Nominator’s total income increased to more than $480,000, it paid almost $200,000 in salaries and superannuation and had a net profit before tax of $45,163.61.   

20. As a result of all the evidence before the Tribunal, it is satisfied that the Nominator is actively and lawfully operating a business in Australia. 

21. Given the above, the requirement in reg 5.19(3)(b) is met.

    Previous employment of the nominee: reg 5.19(3)(c)

22. Broadly speaking, to meet the requirement in reg 5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

23. The Employee told the Tribunal at the hearing that he has worked in a full-time capacity at the business in the nominated occupation of Cook (ANZSCO 351411) since 2 June 2014. As stated above in these reasons, based on the documentary evidence, the Employee was granted a 457 Visa on 2 June 2014, with an expiration date of 2 June 2018. Since that time, the Employee has been employed pursuant to a bridging visa. The Employee confirmed to the Tribunal that he remains employed on a full-time basis as a cook with the business and is paid almost $62,000 per annum, plus superannuation.

24. The Tribunal also had documentary evidence of the Employee’s employment in the form of an employment contract, together with his payslips from 2014, bank statements and notices of assessment from the Australian Taxation Office. According to the Employee’s individual payment summary for the 2015 financial year, his taxable income was over $51,000. The Nominator’s application to the Department in 2016 listed the base rate of pay as $54,000 and $59,400 in total. A 2019 employment agreement listed the Employee’s annual salary as $62,000, plus superannuation and a recent employment agreement signed on 23 February 2022 lists the Employee’s salary as $70,000, plus superannuation at the rate of 10%. This agreement is stated to commence upon approval of the subclass 186 visa associated with this application. The Employee was said to currently be receiving a salary of $61,947.60, plus 10% superannuation. This largely accords with the 2019 employment agreement, although the rate of superannuation is now 10%, not 9.5% as stipulated under that agreement. It also mirrors the Employee’s recent weekly payslips which list his gross weekly pay as being $1,191.30. Over 52 weeks, this amounts to $61,947.60.

25. The Nominator’s application to the Department was made on 16 September 2016, being more than 2 years immediately after the Employee commenced employment in the nominated position with the business, being 2 June 2014. As a result, the Tribunal is satisfied that the Employee was working in the position for which he holds the 457 Visa for at least 2 of the 3 years before the nomination application. Based on the evidence, the Tribunal is satisfied that the Employee has been employed by the Nominator in the nominated position of cook in a full-time capacity since June 2014, a period of almost 8 years, and that this employment has been undertaken in Australia. The Tribunal is therefore satisfied that the nomination meets the requirements in r.5.19(3)(c)(i).

26. Given the above findings, the requirement in reg 5.19(3)(c) is met.

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

27. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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. This requirement applies in this case because the Employee is a person described in r.5.19(3)(c)(i), on which criterion findings were made above by the Tribunal.

28. Based on the available evidence, the Tribunal is satisfied that the Employee will be employed on a full-time basis for at least 2 years and that the terms and conditions of his employment do not include an express exclusion of the possibility of extending the period of employment.

29. The Tribunal had documentary evidence of the Employee’s employment in the form of an employment contract signed by the Employee and the Nominator and dated 6 June 2019 (2019 Employment Agreement), which stated that it is ‘subject to the approval of subclass 186’ and that it:

    shall commence from the date of your initial entry into Australia upon grant of a Subclass 186 – ENS Permanent Resident Visa by Department of Home Affairs and shall be valid initially for a minimum term of two years and subject to mutual agreement between you and the employer, this employment agreement shall be extendable for further terms as mutually agreed.

30. As stated above, the Employee’s remuneration is listed in the 2019 Employment Agreement as being $62,000 per annum, plus superannuation of 9.5%. The Tribunal was told at the hearing that the Employee remains employed with the Nominator on the terms set out in the 2019 Employment Agreement, although the rate and payment of his superannuation entitlements has increased to 10%. This accords with the recent payslips of the Employee.

31. A further employment contract signed by the Employee and the Nominator and dated 23 February 2022 (2022 Employment Agreement) also states that it commences ‘upon grant of a Subclass 186 – ENS Permanent Resident Visa’ and further provides that it ‘shall be valid initially for a minimum term of three years and subject to mutual agreement…this employment agreement shall be extendable for further terms’. The 2022 Employment Agreement also increases the Employee’s salary to $70,000 per annum and lists his superannuation as being at the rate of 10%. As previously noted, the Nominator told the Tribunal that the 2022 Employment Agreement is not yet active and will commence, as stated, upon the grant of a subclass 186 visa to the Employee.

32. The Tribunal was told by both the Employee and the Nominator that they envisaged his employment as a cook with the business continuing for at least 2 years. In this regard, the Employee stated that he enjoyed working as a cook for Bamiyan Restaurant and Mr Miazad told the Tribunal that the Employee had a ‘bright future’ with the business and noted that it is looking to expand its operations in the future. In this regard, there was no evidence before the Tribunal that the Employee’s period of employment will not extend beyond 2 years, including by way of any express clause in either the 2019 Employment Agreement or the 2022 Employment Agreement.

33. Based on the financial information before the Tribunal, the business has made net profits over many financial years and the Nominator has employed the Employee for almost 8 years on a full-time basis in the nominated position. As detailed above, his agreed salary in each of those years has been paid by the Nominator. Therefore, for the avoidance of doubt, the Tribunal is satisfied that the Nominator has the capacity to provide a full-time position to the Employee for at least two years and meet its obligations to the Employee, including the payment of his remuneration.  

34. Given the above findings, the requirement in reg 5.19(3)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(3)(e)

35. 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.

36. For completeness, the Tribunal again notes that both the 2019 Employment Agreement and the 2022 Employment Agreement are said to commence from the date of the grant of a subclass 186 visa. The Employee is currently employed under the 2019 Employment Agreement (except for the increase in the rate of superannuation), which is to be valid ‘initially for a minimum term of two years’. The 2022 Employment Agreement will commence upon the grant of a subclass 186 visa to the Employee and is said to be valid ‘initially for a minimum term of three years’. As previously mentioned in these reasons, the Employee’s current remuneration is $61,947.60 per annum, plus payment of superannuation at the legislated rate. Mr Miazad told the Tribunal that the Employee’s base salary was determined following a comparison with the applicable market rate for a cook and it had always paid him more than that rate.

37. In this regard, in a written submission on behalf of the Nominator and dated 11 June 2019, it was said that:

    Bamiyan restaurant has decided to nominate the nominee for the position of Cook because the nominee knows the culture, work environment, and over a period of time has become familiar with the specialist Afghan cuisine that the restaurant is renowned for.

    …

    The position of Cook is a genuine position because the nominee is already performing duties against the said position. The business requires this position to remain filled by a person of the nominee’s experience who is well-versed with its requirements and has become one of its key employees.

    …

    The business has decided to offer the nominee a base salary of $62,000.00 (plus superannuation) and the total remuneration package is $67,820.00, which will include the superannuation contribution of the sponsor. The above evidence clearly demonstrates that the terms and conditions of employment to be offered to the nominee are no less favourable than being received by Australian citizens or Australian permanent residents.

38. The Nominator also provided a list of 6 advertisements from May and June 2019 for the occupation of cook with various businesses in New South Wales, all of which had base salaries lower than that paid by the Nominator to the Employee. In addition, a recent search by the Tribunal of the information from the website, Payscale identified that the current total salary for a cook in Australia is between $41,000 and $57,000 per annum and the website, talent.com listed the average salary for a cook as being $57,405, with the website indeed.com listing the average base salary for a cook in Australia as $57,212. These amounts are below the Employee’s current remuneration of $61,947.60. In addition, the Restaurant Industry Award [MA000119] lists the weekly pay for a ‘Level 6 – cook grade 5 (tradesperson)’ as being $981.50, which equates to $51,038 per annum. Based on the evidence before the Tribunal, this amount prescribed by the Award is more than $10,000 per annum below the remuneration being paid to the Employee by the Nominator.

1. Based on the evidence, the Tribunal is satisfied that the terms and conditions of the Employee’s employment are 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.

2. Accordingly, the requirement in reg 5.19(3)(e) is met.

   Training commitments and obligations: reg 5.19(3)(f)

3. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.

4. As set out above in these reasons, the Employee was granted a 457 Visa in June 2014 and the Nominator was listed as the sponsor, pursuant to a letter from the Department dated 2 June 2014. The Nominator’s most recent Standard Business Sponsorship was approved on 22 July 2016 and expired on 22 July 2021, noting that the Skilling Australians Fund commenced and applied to these applications from 12 August 2018.

5. Regulation 2.59(d) of the Regulations, which was repealed with effect from March 2018, required businesses operating in Australia to meet training benchmarks for training of Australian citizens and permanent residents as specified by legislative instrument.

6. For the purposes of reg 2.59(d) of the Regulations, Schedule A to Instrument number IMMI 13/030, which commenced on 1 July 2013, set out the benchmarks for the training of Australian citizens and Australian permanent residents. Relevantly, the training benchmarks for an established business were said to be:

   Recent expenditure, by the business, to the equivalent of at least 2% of the payroll o the business, in payments allocated to an industry training fund that operates in the same industry as the business.

7. IMMI 13/030 further stated that 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’; or ‘evidence of payment of external providers to deliver training for Australian employees’.

8. In written submissions dated 11 June 2019 submitted to the Tribunal on behalf of the Nominator, it was stated that:

   We understand that the sponsor was required to comply with the training requirements for the period from 22 July 2016 to 12 August 2018 (the day SAF came into operation on 12 August 2018)

   The wages expenses and superannuation expenses of Bamiyan Restaurant for the period from 22 July 2016 to 12 August 2018 are as follows:

   Wages for Periods   Gross   Super

   22 July 2016 to 21 July 2017               $221,055.00               $21,000.00

   22 July 2017 to 12 Aug 2018               $205,865.00               $19,557.00

   Total wages expenses   $426,920.00               $40,557.00

   Therefore, the total payroll expenses of Bamiyan Restaurant for the period from 22 July 2016 to 12 August 2018 amounted to $467,477.00 (including superannuation contribution).

   At 2% of the contribution in compliance with the Specification of Training Benchmarks and Training Requirements Benchmark “A”, Bamiyan Restaurant was required to contribute a minimum sum of $9349.54 for the relevant period from 22 July 2016 to 12 August 2018.

   We attach a letter dated 7 June 2019 addressed to the Registrar Administrative Appeals Tribunal by Mr Anand Kumar FIPA, Accountant of Bamiyan Restaurant confirming the gross wages expenses and superannuation expenses for the period from 22 July 2016 to 12 August 2018. The evidence in relation to the contribution to the Hospitality Scholarship Fund for a sum of $9,396.00 was accounted for in three payment receipts to TAFE NSW, which is also attached.

   We advise that Bamiyan Restaurant had made the following contributions to NSW TAFE

   1. On 6 April 2017, a sum of $2460.00

   2. On 6 August 2018, a sum of $4936.00

   3. On 7 June 2019, a sum of $2000.00

   Total amount paid $9396.00

   We advise that the Bamiyan Restaurant has complied with the Training Benchmark Legislation “A” for the relevant period from 22 July 2016 to 12 August 2018.

   In view of the above, it is submitted that the nominator had complied with the training requirements as envisaged under Regulation 5.19(3)(f)(i)(A), 5.19(3)(f)(i)(B) and 5.19(3)(f)(ii) and therefore it is respectfully submitted that the matter may please be remitted to the Department of Home Affairs with the direction that the requirements for approving the nomination under Reg. 5.19 have been met. [emphasis in original]

9. The letter from the Nominator’s accountant dated 7 June 2019, referred to above in the Nominator’s written submissions, confirmed the Nominator’s total payroll expenses for Bamiyan Restaurant from 22 July 2016 to 12 August 2018 were $467,477, a 2% contribution in compliance with IMMI13/030 required a minimum sum of $9,349.54 for the period 22 July 2016 to 12 August 2018 and that the Nominator had made payment of three contributions to NSW TAFE, being on 6 April 2017, 6 August 2018 and 7 June 2019, and totalling $9,396. The Tribunal also had copies of the Nominator’s receipts for these three payments on the specified dates to NSW TAFE as part of a ‘Hospitality Scholarship Fund’.

10. The Tribunal is satisfied that the Nominator complied with its requirements under IMMI 13/030 from the date it was approved as a standard business sponsor on 22 July 2016 and up until 12 August 2018 when the Skilling Australians Fund commenced. Despite the commencement of the Migration Amendment (Skilling Australian Fund) Regulations 2018 and repeal of reg 2.87B occurring on 12 August 2018, a transitional provision (cl 7602(5) of Schedule 13 to the Migration Regulations 1994) exempts a standard business sponsor from complying with the repealed reg 2.87B in relation to a period of 12 months ending on or after 12 August 2018. That is, the obligation only applies in relation to full periods of 12 months standard business sponsorship that end before 12 August 2018. Therefore, in this application, the relevant obligations applied to the Nominator from 22 July 2016 to 21 July 2017 and from 22 July 2017 to 21 July 2018, not up until 12 August 2018. However, given the difference between 21 July 2018 and 12 August 2018 is only a few weeks of payroll expenditure for the Nominator, the impact may have been that the Nominator paid slightly more than strictly necessary under its training commitments. As set out above, the Nominator made three payments totalling $9,396 between 6 April 2017 and 7 June 2019. These payments began to be received from within 12 months of the start of the Nominator’s most recent standard business sponsorship and up until 12 months after the end of that relevant period in July 2018. While the Nominator’s third and final payment under IMMI 13/030, totalling $2,000, was made after the decision under review dated 5 March 2019, it was paid by the Nominator on 7 June 2019, being within the 12 months after the end of the relevant period in July 2018. Mr Miazad told the Tribunal that his former migration agent was responsible for failing to inform him that the required training expenditure was due to be paid and this is why it was not done so until June 2019. The Nominator’s current migration agent, Mr Vimalarajah, submitted to the Tribunal that the Nominator had met its training expenditure requirements and commitments at the time of the Tribunal’s review and that should be the relevant reference point for the Tribunal in determining compliance with this regulation.   

11. The Tribunal again notes that, although not applicable in this application, from March 2018, these regulations were repealed such that the training requirement no longer applied to live applications for standard business sponsorship approval from that date. Therefore, nominators whose most recent standard business sponsorship was approved on or after 18 March 2018 are under no obligation or commitment to meet this training requirement under reg 5.19(3)(f). Moreover, under this provision, it is open to a decision-maker to disregard this requirement if it is reasonable to do so and find that the nominator meets reg 5.19(3)(f).

12. The Tribunal further notes that the training obligations in reg 2.87B provide that certain standard business sponsors must comply with training obligations for a period of 12 months commencing on the day they are approved as a sponsor. As noted above in these reasons, the obligation only applies in relation to full periods of 12 months that end before 12 August 2018. Therefore, in this application, the relevant obligations applied to the Nominator from 22 July 2016 to 21 July 2017 and from 22 July 2017 to 21 July 2018, not until 12 August 2018. The Department’s policy is to assess compliance on an annual, rather than pro-rata, basis. While the obligation commences on the day of approval of the standard business sponsorship, which may suggest a pro-rata assessment is possible, the better interpretation appears to be that the obligation cannot be assessed until at least 12 months have elapsed, given the requirement anticipates a need for it to be met for the entire period, it does not arise unless and until a primary person is sponsored, and as the instruments specifying training requirements refer to expenditure equal to a specified proportion of payroll in the last financial or calendar year. In this regard, the Tribunal is satisfied that the Nominator’s last two payments made in August 2018 and June 2019 were made in a reasonable amount of time after it was aware of its payroll expenditure in the financial years ending 30 June 2017 and 30 June 2018 or the end of the 2017 and 2018 calendar years, noting again that this particular obligation ended for the Nominator in July 2018. Additionally, IMMI 13/030 requires that the Nominator incurred ‘recent expenditure’ equivalent to 2% of the payroll figure for the 12 month period. The Tribunal finds that the Nominator complied with this obligation through payment of the training expenditure between 2017 and 2019. 

13. Accordingly, for the above reasons, the Tribunal is satisfied that the requirement in reg 5.19(3)(f) is met.

    No adverse information known to Immigration: reg 5.19(3)(g)

14. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. Based on the information before the Tribunal, it finds that there is no adverse information known to Immigration about the Nominator or a person ‘associated with’ the Nominator. Mr Miazad confirmed at the hearing that there was no such adverse information in relation to the Nominator.

15. Accordingly, the requirement in reg 5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: reg 5.19(3)(h)

16. 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. Based on the evidence before the Tribunal, it finds that the Nominator has a satisfactory record of compliance with workplace relations laws in locations in which it operates a business and employs staff. Mr Miazad also confirmed that the Nominator had a satisfactory record of compliance with workplace relations laws.

17. Accordingly, the requirement in reg 5.19(3)(h) is met.

18. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    W Frost
    Member

    
    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.