Billion Properties Group Pty Ltd (Migration)

Billion Properties Group Pty Ltd (Migration) [2020] AATA 2496 (30 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Billion Properties Group Pty Ltd
CASE NUMBER:  1730196
DIBP REFERENCE(S):  BCC2017/2128558
MEMBER:Keith Kendall
DATE:30 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 April 2020 at 4:11pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – standard business sponsor – actively and lawfully operating a business in Australia – nominator was employed in the nominated position in a full time capacity – no less favourable terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 November 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).
The applicant applied for approval on 16 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c) of the Regulations because the delegate was not satisfied that the nominee had been employed in the nominated position for at least two years in the three years preceding the nomination application being lodged.
The applicant, represented by Mr Tony Lee, appeared before the Tribunal on 30 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Ishkaran Dhingra.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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
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.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.
On the basis of the information in the file of the Department of Immigration and Border Protection (the Department), the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided on the form.
The identified occupation in the application is Real Estate Agent (ANZSCO 612114) with a base salary of $60,000 per annum. This is the same occupation as that held by Mr Dhingra in respect of his Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
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.
The applicant was most recently a standard business sponsor for the period 30 October 2014 to 30 October 2017. The applicant is the standard business sponsor who last identified Mr Dhingra as the holder of a Subclass 457 visa in a nomination.
The applicant provided a number of documents to the Tribunal demonstrating the applicant’s past and ongoing business activities. These included:
·Extract from the Australian Business Register obtained on 14 November 2019 indicating that the applicant has had an active Australian Business Number (ABN) since 16 April 2013 and been registered for goods and services tax (GST) since that same date (a check of the Australian Business Register conducted by the Tribunal on 29 April 2020 confirmed that these details remain current);
·Certificate of Registration of a Company obtained from the Australian Securities and Investments Commission (ASIC) obtained on 3 February 2020 indicating that the applicant has been incorporated since 16 April 2013;
·Extract from the ASIC database obtained on 3 February 2020 confirming the above incorporation details;
·Quarterly business activity statements (BAS) covering the period 1 October 2014 to 30 September 2019 (noting that the three BASs for the period 1 January 2018 to 30 September 2018 were not provided);
·Financial reports comprehensively covering the years ended 30 June 2014, 2015, 2016, 2017, 2018 and 2019; and
·Evidence of renewals of real agent licences.
Based on the above evidence, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.
There is no evidence before the Tribunal that the applicant conducts any business outside Australia.
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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; 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.
Based on the information in the Department’s file, Mr Dhingra held an appropriate Subclass 457 visa from 9 December 2014 to 9 December 2018.
The applicant provided a copy of the initial contract of employment between the applicant and Mr Dhingra. This contract was dated 17 October 2014. At the hearing, Mr Dhingra explained that he commenced working for the applicant on a full time basis on 9 December 2014, the delay between signing the contract and commencing full time work due to the latter date being the date upon which Mr Dhingra was granted his Subclass 457 visa.
The applicant provided a copy of Mr Dhingra’s PAYG Payment Summary for the year ended 30 June 0215, which indicates that Mr Dhingra began receiving payments from the applicant on 9 December 2014.
The applicant also provided PAYG Payment Summaries for the years ended 30 June 2016, 2017 and 2018. The amounts shown on these PAYG Payment Summaries indicate that Mr Dhingra was paid a varying amount in each year, although, at best, very little above the base salary nominated in the application form (and sometimes less). As Mr Dhingra’s remuneration was to include commissions on sales made, this information may suggest that Mr Dhingra had not been working on a full time basis for the entire period claimed (and was critical in the reasoning in the primary decision).
The applicant’s representative made extensive written submissions in this regard, setting out the manner in which Mr Dhingra’s remuneration was calculated. This involved a mechanism by which some commissions were offset against the base salary to be paid before contributing to additional remuneration, which is supported by the terms contained in the contract of employment. Further, this commission was to be paid upon settlement of the relevant transaction and not at the time that the relevant contract of sale was entered into, which could (and often did) result in a significant delay in the commission being paid (with the outcome that commissions made in one year may not be reflected in Mr Dhingra’s received payments until a much later year).
The applicant provided a letter dated 15 June 2017 in which it was noted that, prior to the nomination application being lodged, Mr Dhingra had taken a total of 24 weeks of unpaid leave (as well as nine weeks of paid leave). This was confirmed by Mr Lee at the hearing.
As the representative notes in his submission dated 12 April 2018, the amounts reported in the PAYG Payment Summaries were suppressed by the period of unpaid leave. Consequently, it may be seen that, once allowance is made for the period of unpaid leave, the amounts received may be consistent with Mr Dhingra having been in full time employment during that period.
In further support of the applicant’s submission that Mr Dhingra has been employed in the capacity described, the applicant provided numerous contracts of sale for the sale of properties that Mr Dhingra had facilitated during this period as well as a similar number of contemporaneous client testimonials referencing Mr Dhingra’s involvement in their respective transactions.
The applicant also provided a detailed spreadsheet identifying the calculations of the commissions payable to Mr Dhingra, which reflected the mechanism described above.
Based on the above evidence, the Tribunal is satisfied that Mr Dhingra commenced working for the applicant in a full time capacity in the nominated position on 9 December 2014.
The period between Mr Dhingra commencing full time employment (9 December 2014) and the nomination application being lodged (16 June 2017) is approximately 131 weeks. Reducing this period by the 24 weeks on which Mr Dhingra was unpaid leave (which cannot count towards the period of service for the purposes of this criterion), results in Mr Dhingra working for the applicant in a full time capacity for 107 weeks.
As this period of full time service is longer than two years, the Tribunal is satisfied that Mr Dhingra was employed in the nominated position in a full time capacity (which was undertaken in Australia) for at least two years in the three years immediately before the nomination application was lodged and held a relevant Subclass 457 visa during this period.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). Based on the findings in relation to r.5.19(3)(c), Mr Dhingra falls into this category. 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.
At the hearing, in response to questions from the Tribunal, Mr Lee stated that he expected Mr Dhingra to remain employed in the nominated position for at least two further years. Mr Lee noted that, aside from himself, Mr Dhingra was the only other sales person employed by the applicant, whose business was dependent on sales being generated.
The financial reports provided indicate that, with the exception of a nominal loss in the year ended 30 June 2018, the applicant’s business has been moderately profitable during the years for which reports were provided. As the applicant has been accommodating Mr Dhingra’s remuneration during this period and maintained a track record of profitability, the Tribunal is satisfied that the applicant has the financial capacity to pay Mr Dhingra’s full time remuneration for at least two further years.
The applicant provided a copy of the most recent contract of employment between the applicant and Mr Dhingra dated 12 November 2019. While that contract does not specify a minimum term of employment, the contract clearly contemplates the employment relationship as being an ongoing one of no fixed duration. In particular, this interpretation is supported by clauses 7.1 (performance appraisals to be conducted on at least an annual basis) and 8.2 (progressive accrual of annual leave). The contract explicitly provides for full time working hours to be performed (see clause 4.1).
In light of Mr Dhingra’s work history with the applicant, Mr Lee’s oral evidence and the ongoing nature of the position as implied by the contract, the Tribunal is satisfied that Mr Dhingra will be employed in the nominated position on a full time basis for at least two years.
The contract dated 12 November 2019 does not expressly preclude the possibility that the employment will continue beyond this two year minimum period.
The Tribunal, therefore, finds that the terms and conditions of Mr Dhingra’s employment do not include an express exclusion of the possibility of extending the period of employment beyond two years.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
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.
The applicant submitted that it did not, nor ever has, employ an Australian citizen or permanent resident in a position comparable to that of Mr Dhingra.
In addressing this criterion, the applicant provided a copy of the applicable industrial award applicable to the nominated position (the Real Estate Industry Award 2010). There is nothing in the employment contract dated 12 November 2019 that is contrary to the contents of this award.
The annualised minimum wage provided for in this award is approximately $45,000. This is below Mr Dhingra’s nominated salary of $60,000 per annum.
The applicant also provided numerous job advertisements obtained from several different websites. These advertisements related to positions comparable to Mr Dhingra’s, in similar locations. Mr Dhingra’s salary falls within the range established by the salaries specified in these advertisements.
Based on the above evidence, the Tribunal is satisfied that the terms and conditions applicable to Mr Dhingra’s position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
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.
In accordance with Instrument number IMMI 13/030, the applicant may meet the training expenditure requirement of r.5.19(3)(f) in one of two ways. In brief, during the period of sponsorship, Training Benchmark A requires that the applicant contribute at least 2% of its payroll to an industry training fund, and Training Benchmark B requires that the nominating business spend at least 1% of its payroll in providing training to its employees.
The applicant has not provided any evidence that it has made any payments going towards Training Benchmark A, nor has it made any claims in this respect. Therefore, the Tribunal finds that Training Benchmark A has not been met.
As noted, the applicant’s standard business sponsorship period covered the period 30 October 2014 to 30 October 2017. As the most disaggregated wage information is provided in the BASs, this results in a small misalignment of one month at the beginning of the period and one month at the end. The Tribunal has conducted the analysis in respect of this criterion by applying the BAS periods as closely as possible to the sponsorship period (effectively 1 October 2014 to 30 September 2017).
Based on the information contained in the BASs, the applicant spent $187,679 in Year 1 of the sponsorship period, $235,957 in Year 2 and $175,204 in Year 3.
Increasing these amounts by 9.5% to allow for superannuation, this results in total payroll during the sponsorship period of $205,509 in Year 1, $258,373 in Year 2 and $191,848 in Year 3.
In respect of Training Benchmark B, the applicant provided three invoices relating to training expenditure in the sponsorship period.
The first invoice is dated 9 September 2016 (relating to Year 2 of the sponsorship period) and is for expenditure of $3,100. The remaining two are both dated 9 June 2017 (relating to Year 3 of the sponsorship period) and amount to $3,950.
There is a notation on one of the invoices dates 9 June 2017 (n the amount of $2,350) that the payment is based on the applicant’s 2014/15 payroll. No further information is provided on this aspect. This appears to be an attempt to attribute this payment to Year 1 of the sponsorship period, however, in the absence of further information, the Tribunal is not prepared to make that attribution. Further, it is not clear when in the 2014/15 year the payment should be taken to have been incurred, noting that the period 1 July 2014 to 29 October 2014 is outside the sponsorship period.
Consequently, the Tribunal has attributed this payment to Year 3 of the sponsorship period, consistent with the date of the invoice.
Addressing the requirement of Training Benchmark B, this information results in the applicant having spent 0% of its total payroll on training expenditure in Year 1 of the sponsorship period, 1.2% in Year 2 and 2.1% in Year 3.
As the applicant has not met Training Benchmark B in Year 1 of the sponsorship period, the Tribunal is not satisfied that it has met the training expenditure requirement in r.5.19(3)(f)(i).
As noted, there is a discretion under r.5.19(3)(f)(ii) to disregard the training expenditure requirement where it is reasonable to do so.
Considering the overall training expenditure incurred and the total payroll over the course of the sponsorship period, the applicant has spent 1.1% of its total payroll on training expenditure (training expenditure of $7,050 divided by total payroll of $655,730).
As the applicant has spent greater than 1% of its total payroll on training expenditure across the sponsorship period as a whole, which would meet Training Benchmark B had that been applied across the whole sponsorship period (and not on an annual basis), The Tribunal is satisfied that this demonstrates the applicant’s commitment to meeting its training commitments.
Therefore, the Tribunal is satisfied that it is reasonable to disregard the training expenditure requirement in r.5.19(3)(f)(i) as permitted by r.5.19(3)(f)(ii).
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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 rr.1.13A and 1.13B.

There is no adverse information available on the Department’s file nor has any adverse information been disclosed since the time of the primary decision.
The Tribunal is, therefore, satisfied that there is no adverse information in relation to the applicant or an associated person known to the Department.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
There is no information on the Department’s file or available to the Tribunal to suggest that the applicant does not have a satisfactory compliance record relating to workplace relations.
Therefore, the Tribunal is satisfied that the applicant has a satisfactory record of compliance with workplace relations laws.
Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Keith Kendall
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.

[2020] AATA 2496

30 April 2020

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