Bhangu Pty Ltd ATF Raam Family Trust (Migration)

[2019] AATA 5145

Bhangu Pty Ltd ATF Raam Family Trust (Migration) [2019] AATA 5145 (18 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bhangu Pty Ltd ATF Raam Family Trust

CASE NUMBER:  1709280

DIBP REFERENCE(S):  BCC2016/475013

MEMBER:De-Anne Kelly

DATE:18 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 18 November 2019 at 11:25am

CATCHWORDS
MIGRATION – application for approval of nomination of position – Temporary Residence Transition stream – financial capacity to provide full-time employment for two years – cash flow, superannuation, depreciation and profit or loss – correct expenditure on superannuation leads to net loss in 2018-19 financial year – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 359AA

Migration Regulations 1994 (Cth), r 5.19(3)(d)(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 Immigration on 13 April 2017 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 1 February 2016. 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 the 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) and therefore r.5.19(3)(d) of the Regulations, because the evidence provided did not demonstrate that the nominating business had the financial capacity to provide full-time paid employment and superannuation contributions to the nominee for a minimum period of two years.

5. The applicant appeared before the Tribunal on 22 October 2019 to give evidence and present arguments. This was a dual hearing of the employer nomination refusal review and the visa application refusal review. The Tribunal also received oral evidence from the visa applicant or nominee, Mr Vikram Singh, and the accountant for the employer, Mr Mohan Maharaj.

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

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.

9. The applicant Bhangu Pty Ltd as trustee for the Raam Family Trust in 2013 established Rehaan Automotive Care at 31 Thornlaw Street, Durack, QLD 4077. The director of the business, Mr Arvinder Singh, employs six motor mechanics and one apprentice, with four being Australian locals and three on 457 temporary visas. Mr Arvinder Singh does not work in the business but finds customers and sources equipment and parts at a good price for the business. He is in the process of setting up a taxi leasing company and does not take a wage out of the business.

10. The business services vehicles mainly from the taxi industry and undertakes servicing, rebuilding motors and engine rebuilding. Replacing an engine with a second-hand engine saves time and reduces the workshop build from five to two days. The business services both black and white taxis and yellow cabs. The entry of Uber into the ride share market has had an impact on the taxi industry and indirectly on Rehaan Automotive Care. They mainly rely on word-of-mouth because of their reasonable prices and quick service. The director advised that they made a loss in the first two years but that the business is going well now.

11. Profit and loss statements were submitted for years 2016, 2017 and 2018 with profit before tax of $71,142, $18,432 and $24,017 respectively.

12. Documents were provided as follows;

    1)    Payroll slips for Vikram Singh from 1 July 2014 to 30 June 2015.

    2)    Employment contract dated 18 July 2013 signed by Vikram Singh and Arvinder Singh.

    3)    Business activity statement from 1 July 2015 to 30 September 2015.

    4)    Business activity statement from 1 October 2015 to 31 December 2015.

    5)    Trust tax return for 2015.

    6)    Financial statements for year ended 30 June 2015.

    7)    Certification form paying for the visa sponsorship dated 3 February 2016 signed by Arvinder Singh.

    8)    PAYG payment summary for Charanjit Singh: 1 July 2014 to 30 June 2015 and 1 July 2015 to 30 June 2016.

    9)    Notice of assessment from Australian tax office for Vikram Singh year ended 30 June 2014, 30 June 2015 and 30 June 2016.

    10) PAYG payment summary for Vikram Singh from 1 July 2014 to 30 June 2015; 1 July 2015 to 30 June 2016.

    11) Payroll activity summary from 1 July 2014 to 30 June 2015; 1 July 2015 to 30 June 2016.

    12) Suncorp superannuation summary for Vikram Singh dated 13 September 2016.

    13) Vehicle manufacturing, repair, services and retail award 2010.

    14) Raam Family Trust deed.

    15) Annual leave on long service leave application forms signed by Vikram Singh for leave 16 March 2015 to 4 May 2015; 24 December 2013 to 22 February 2014.

    16) Certificate of registration of a company, Bhangu Pty Ltd dated 29 May 2013.

    17) Letter from Queensland government dated 18 August 2014 confirming apprenticeship training for Charanjit Singh.

    18) Apprenticeship training contract dated 14 August 2014 for Charanjit Singh.

    19) Raam Family Trust trading account for the year to 30 June 2016.

    20) Tax return for Bhangu Pty Ltd for 2016.

    21) Nomination refusal, Department of Immigration And Border Protection, dated 13 April 2017.

    22) Letters from Flannery Law dated 2 February 2019 and 29 March 2019 regarding reregistration of company by ASIC.

    23) Notification of reinstatement of registration dated 15 March 2019 from ASIC.

    24) ASIC registration for Bhangu Pty Ltd dated 29 May 2013 to 29 May 2019.

    25) Letter from Sharma and Jaiswal, accountants dated 1 July 2019.

    26) Financial report for Raam Family Trust to 30 June 2017 and 30 June 2018, both prepared by Sharma and Jaiswal accountants.

    27) Detailed profit and loss statement for the year ended 30 June 2019, prepared by Mr Maharaj.

    28) 2017 to 2018 and 2018 to 2019 trust financials prepared by Mr Maharaj.

    29) Letter to Department of Home Affairs dated 18 September 2019 from Mr Maharaj, principal of Active ATS regarding financial years 2018 and 2019.

    30) Letter to Department of Home Affairs dated 18 September 2019 from Mr Maharaj, principal of Active ATS regarding financial years 2014 to 2019.

    31) Letter “regarding the ongoing concern: Rehaan automotive”, dated 28 October 2014 from Bryant and Company Chartered Accountants.

    32) Letter from Arvinder Singh, dated 11 October 2019.

    33) Documents in relation to the nominated apprentice, Charanjit Singh;

    a)Visa entitlement verification online.

    b)Queensland driver licence.

    c)tax returns for 2016, 2017 and 2018 financial years.

    d)Indian secondary school certificate showing parents’ names.

    34) Business activity statements from 1 July 2017 to 30 June 2019.

    35) SunCorp business accounts from 1 July 2017 to 30 June 2019.

    36) Letter from Mr Maharaj, dated 5 November 2019.

    37) Email from the Migration agent dated 5 November 2019.

    38) Letter from Mr Maharaj dated 12 November 2019.

    39) Depreciation schedule for Bhangu Pty Ltd for year ended 30 June 2019.

13. The Tribunal has carefully accounted for all documents by comparing the paper-based file to the list above; by comparing the electronic file of documents to the list above and by opening each electronic document file to ensure that all attachments are recorded in the list above. The Tribunal is satisfied that all documents have been properly accounted for and included in the list above. The Tribunal has carefully considered all documents.

    Other Matters

14. The Tribunal raised with Mr Arvinder Singh a referral from an anonymous third-party alleging that the sponsorship is fraudulently provided by the nominating entity. The third-party alleges that sponsored employees were in fact not employees and do not work there, though money is siphoned through the business accounts to give the impression of salary and wages being paid. The Tribunal invited Mr Arvinder Singh to respond to this allegation if he wished but no weight was given to anonymous third-party allegations and the Tribunal would not be taking this allegation into account in reaching a decision.

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 two years on terms that do not expressly preclude the possibility of an extension.

2. The Tribunal considered the letter[1] from Flannery Law dated 21 October 2019 but finds this examines the merits of the original delegate’s decision and goes to the profitability of the business in 2016. The letter is not germane to a decision on the profitability of the business in 2019. The letter does state that a refusal for the nominee and his family and the business would not just be a financial disaster but will have an emotional cost that is nothing short of catastrophic. The Tribunal acknowledges that decisions on review have an emotional impact on those involved but is bound to consider whether the applicant has met the regulations.

   [1] Letter from Flannery Law, dated 21 October 2019.

3. The Tribunal considered the letter[2] from Mr Arvinder Singh dated 11 October 2019 that referred to a net profit in 2019 of $42,435 excluding depreciation, which is not consistent with the detailed profit and loss statement for the year ended 30 June 2019 prepared by Mr Maharaj which showed a net profit before distribution of $18,997. The Tribunal cannot give this assertion of net profit any weight. The letter argues the merits of the delegate’s original decision based on 2014, 2015 and 2016 figures. The Tribunal finds that this is not germane to a decision on the profitability of the business in 2019.

   [2] Letter from Arvinder Singh, dated 11 October 2019.

4. Tribunal considered the letter[3] from Bryant & Co dated 28 October 2014 but found this related to financial figures in 2014 and no weight can be placed on it by the Tribunal in reaching a decision on the profitability of the business in 2019.

   [3] Letter “regarding the ongoing concern: Rehaan automotive”, dated 28 October 2014 from Bryant and company chartered accountants.

5. The Tribunal must consider whether the business is profitable such that the nominee will be employed on a full-time basis for at least two years. The profit and loss statements for Raam Family Trust ABN 30 607 212 278 years 2016 to 2019 are shown in the table below and give profit of $71,142, $18,432, $24,017 and $18,997 respectively:

Profit and Loss	2016	2017	2018	2019
Sales	313,407	352,487	435,706	578,748
Wages	113,739	167,667	226,639	319,596
Superannuation	0	15,928	21,530	3,907
Total expenses	128,526	150,460	163,520	236,248
Profit before tax	71,142	18,432	24,017	18,997

1. The figures in the 2017 to 2018 and 2018 to 2019 trust financials[4] prepared by Mr Maharaj are identical to the financial report for Raam Family Trust to 30 June 2017 and 30 June 2018[5], both prepared by Sharma and Jaiswal Accountants. Mr Maharaj was engaged by the applicant to replace the previous accountants and to prepare the 2019 returns.

   [4] 2017 to 2018 and 2018 to 2019 trust financials prepared by Mr Maharaj.

   [5] Financial report for Raam family trust to 30 June 2017, 30 June 2018 prepared by Sharma and Jaiswal accountants.

2. Since the results are the same for the figures prepared by both accountants, the Tribunal will use Sharma and Jaiswal’s financial report for 2017 and 2018 as they accurately detail expenditure that is relevant to the Tribunal’s decision. Mr Maharaj prepared both 2017 to 2018 and 2018 to 2019 trust statements[6] and a detailed profit and loss statement for the year ended 30 June 2019[7]. The Tribunal will use the latter as it contains more detail about actual expenditure. Using these figures the table below has been prepared comparing figures from 2017, 2018 and 2019:

   [6] 2017 to 2018 and 2018 to 2019 trust financials prepared by Mr Maharaj

   [7] Detailed profit and loss statement for the year ended 30 June 2019, prepared by Mr Maharaj.

Profit and Loss	2017	2018	2019
Sales	352,487	435,706	578,748
Cost of sales	77,445	95,852	155,679
Gross profit	275,042	339,854	423,069
Expenses
Advertising & marketing	61	1,856	1,992
Assessment fee	300
Bank charges & fees	392	967	120
Cleaning & rubbish Remove	661	582
Computer expenses	41	79
Depreciation Plant	1,461	-	23,368
Filing fees	402	-
Fines & penalties	334	292
Gas & electricity	1,557	650	2,572
Inspection fee	891	2,918
Insurance	3,268	3,499	3,164
Legal & professional	1,673	-
Low value assets	-	1,500
MV com. fuel & oil	7,044	4,449
MV commercial other	47	14
MV com. Reg/insure	5,511	3,287	7,304
Meals & entertainment	160	180
Office expenses	2,799	2,528	395
Postage & shipping	137	384
Rates	261	1,205
Rent	32,909	32,909	32,909
Repairs & maintenance	284
Salaries & wages	167,667	226,639	319,596
Sponsorship expenses	100
Staff amenities	2,417	4,466
Subcontractors	5,835	-
Subscriptions	65	198
Superannuation	15,928	21,530	3,907
Telephone & internet	2,511	2,377	3,218
Toll tax	554	631
Tools	638	1,099	4,891
Travel expenses	135	273
Uniform expenses	-	118	636
Water/sewage	944	814
Total expenses	256,603	315,828	404,072
Profit to  beneficiaries	18,432	24,017	18,997

1. The Tribunal noted several items of expenditure were not accounted for in 2019 as they had been in 2016 and 2017. Staff amenities cost $2,417 and $4,466 for financial years 2016 and 2017 respectively while there was zero spent in 2019. The accountant Mr Maharaj stated at the hearing by telephone that staff amenities may have been included in “cost of goods sold” and later confirmed that was the case in his letter of 5 November 2019. Superannuation had been shown at the rate of 9.5% in years 2016 and 2017 but was shown at the rate of 1.2% or $3,907 in 2019. The accountant Mr Maharaj stated at the hearing that the correct percentage for superannuation should be 9.5% or some $30,362. The Tribunal under s.359AA of the Migration Act 1958 put to Mr Arvinder Singh that if the real figure of $30,362 for superannuation was used in the profit and loss for 2019, there would be a loss rather than a profit of $18,997.

2. Mr Arvinder Singh responded that superannuation does not have to be paid each year. He also stated that employees earning less than $450 a month are not paid superannuation. It was also suggested that superannuation may be shown in “cost of sales” rather than as a line item under superannuation. The Tribunal responded that superannuation is payable each year and that all of his employees are full-time and earning well above $450 per month. The Tribunal did not accept that superannuation is shown in “cost of sales” as superannuation is indeed a line item in the profit and loss and the amount shown for it was $3,907 rather than the actual superannuation figure of $30,362. The applicant’s migration agent stated that they would make a submission on this within 14 days.

3. The applicant’s migration agent sent a letter[8] dated 5 November 2019 from Mr Maharaj that stated as follows:

   [8] Letter from Mr Maharaj, dated 5 November 2019.

   ·     Client is on a cash basis of accounting.

   ·     Total superannuation relating to the year ended 30 June 2019 was $30,362.59. This amount has now been paid.

   ·     Net cash flow for the business was as follows:

   o    net profit for the year ended 30 June 2019 – $18,997.

   o    Adjustment for depreciation – $23,368.

   o    Adjustment for superannuation shortfall ($30,362 less $3907)  $26,455.

   o    Net profit before depreciation and after superannuation (net cash flow) – $15,910.

   (Depreciation is an allocation of non-cash expense and it has no impact on the cash flow of the business).
   It is our opinion that the business is financially viable as it has a positive cash flow which means a business is able to pay its debts and retain surplus funds. Also, as previously advised a review of the business’s  recent past performance indicates a solid and consistent performance (i.e. increasing sales and net profit). In addition to this, the business has been and continues to pay its employees as required.

4. The Tribunal noted that Mr Maharaj was asking the Tribunal to consider net cash flow rather than profit on the basis that depreciation is a non-cash expense. An email dated 5 November 2019[9] from the migration agent makes the same arguments as the accountant regarding the exclusion of depreciation from the profit and loss figures. The Tribunal considered this argument and made the following request for the depreciation schedule;

   I am writing in relation to the application for review made by Bhangu Pty Ltd ATF Raam Family Trust.

   You are requested to provide the following information:
   The issue of depreciation is described as a non-cash expense and having no impact on the cash flow of the business. Please provide the Tribunal with the depreciation schedule for the business.

   It is noted that the income for the business from 1 July 2018 to 30 June 2019 taking deposits from the bank account is $559,181. The income shown on the Profit and Loss is $578,748. Please provide an explanation for the discrepancy between these.

   Noting: It was advised at the hearing that this is the only business account for the motor mechanic business, with there being another account for the new taxi lease business.

   Please provide this information, in writing, by 14 November 2019.

   [9] Email from the Migration agent dated 5 November 2019.

1. The applicant’s migration agent sent a letter[10] dated 12 November 2019 from Mr Maharaj that stated as follows:

   I refer to your letter dated 7 November 2019 provide the following information is requested:

   ·     a copy of the depreciation schedule for the business for the year ended 30 June 2019.

   ·     The discrepancy in income between sales (as per profit and loss) and banking relates to cash sales which were unbanked and expanded (sic) for work-related purposes.

   ·     We confirm that this is the only business account for the business (as advised by the client) with there being another account open for the new taxi lease business in September 2019.

   [10] Letter from Mr Maharaj dated 12 November 2019.

2. The Tribunal accepts the explanation regarding the discrepancy in income between bank statements and profit and loss statement and acknowledges that there is only one relevant business account. The Tribunal studied the depreciation schedule for 2019 to determine if there were any small business right-offs such as expenditure on tools, printers and other items or whether the depreciation related to major assets that had a limited useful life. It was noted that the asset descriptions were for a business vehicle at a cost of $22,800; hoist at a cost of $10,500 and workshop equipment (various) at a cost of $12,349. The depreciation method utilised was the diminishing value method. The Tribunal noted the Australian Tax Office advice regarding depreciation calculations:

   Methods of working out decline in value - You generally have the choice of two methods to work out the decline in value of a depreciating asset. These are: the prime cost method or the diminishing value method. Both these methods are based on a depreciating asset’s effective life.

3. The Tribunal considers that these are major assets to a motor mechanic repair business and will have to be replaced when their useful life is over. As such, the business is allowed a depreciation cost each year to ensure funds are set aside so the business assets can be replaced when their useful life is concluded. The Tribunal does not accept the argument that depreciation can be included as expenditure and used by the business to minimise their tax, but that depreciation is then excluded as expenditure and used by the business to seek a migration outcome. It is noted that tax minimisation is not unlawful. The Tribunal considers if a business is not profitable and is using the depreciation reserves to cover this loss, then it will not have those reserves to replace essential business assets when their useful life ends. Without essential assets, a business cannot continue to operate so it is reasonable that the Tribunal consider the profit with depreciation included. The Tribunal considers that the applicant and the accountant are conflating net cash flow and net profit, which are not the same.

4. The Tribunal does not accept that depreciation of $23,368 can be excluded from the profit and loss figures for 2019 and with the correct expenditure on superannuation of $30,362 included, the business is shown to make a loss of $7,458 for the 2019 financial year rather than a profit of $18,997. The Tribunal notes the accountant’s opinion of 5 November 2019 that the business is financially viable; has a positive cash flow; is able to pay its debts and retain surplus funds; shows solid and consistent performance and continues to pay its employees as required. While much of this may be so, it does not change the fact that the profit and loss with accurate superannuation figures and including depreciation makes a loss of $7,458 for the 2019 financial year.

5. The Tribunal considered the letters[11] from Mr Maharaj dated 18 September 2019 that again ask the Tribunal to consider net profit before depreciation, an argument that has been considered above. The letters[12] reiterate that the business has continually been operating profitably which is not consistent with the adjusted profit and loss statement for 2019 that shows a loss of $7,458. The Tribunal therefore does not place weight on these letters.

   [11] Letter to Department of home affairs dated 18 September 2019 from Mr Maharaj, principal of Active ATS regarding financial years 2014 to 2019.

   [12] Letter to Department of home affairs dated 18 September 2019 from Mr Maharaj, principal of Active ATS regarding financial years 2018 and 19.

6. The Tribunal finds the applicant Bhangu Pty Ltd ATF Raam Family Trust made a loss of $7,458 in the 2019 financial year and is not able to ensure the nominee will be employed on a full time basis in the position of motor mechanic for at least two years.

7. Given the above findings, the requirement in r.5.19(3)(d) is not met.

8. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3).

9. The applicant has not sought to satisfy the criteria in the 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

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

    De-Anne Kelly

    
    

    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.