Bright Star Solutions Pty Ltd (Migration)
[2022] AATA 1018
•31 March 2022
Bright Star Solutions Pty Ltd (Migration) [2022] AATA 1018 (31 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Bright Star Solutions Pty Ltd
REPRESENTATIVE: Mr Don Katugampala (MARN: 9601070)
CASE NUMBER: 1903513
HOME AFFAIRS REFERENCE(S): BCC2018/5767379
MEMBER:Warren Stooke AM
DATE:31 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 31 March 2022 at 12:36pm
CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – position of Accountant (General) – nominated occupation and its code correspond to a specified occupation – business changed to a new structure – evidence of recruitment advertising – English language requirements – genuine position – nomination training contribution charge – decision under review set aside
LEGISLATION
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140GB, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 482.223; rr 2.57, 2.72, 2.73, 5.42CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 Home Affairs on 5 February 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 21 December 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the responsibilities and duties of ANZSCO Code: 221111 because the occupation applied to the nominee in accordance with the instrument or work agreement was not consistent with the requirements of the code.
The applicant, Mr Sylvester, appeared before the Tribunal on 17 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rushka Augustin (the nominee).
The applicant stated that the applicant had received and read a copy of the delegate’s decision and provided a copy of the decision to the Tribunal with the application for review by the Tribunal.
The applicant stated that he understood the visa application was refused because the application did not meet the criteria of working as an accountant and that the role was that of a book-keeper.
The applicant was represented in relation to the review.
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 the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The applicant provided evidence that the business was registered with ASIC on 26 October 2013 as Bright Star Solutions Pty Ltd with an ABN: 34 756 265 069 and from 1 July 2019 with Bright Star Cleaning Pty Ltd with an ABN: 17 634 348 566.
The applicant stated that he is the owner and director of Bright Star Solutions Pty Ltd that the business conducts commercial cleaning of council offices; childcare; and medical centres.
The applicant provided evidence that the business was restructured in from 1 July 2019 and renamed Bright Star Cleaning Pty Ltd with a different ABN but with the same directors and assets and with the intention to focus on cleaning with the same staff and equipment. He stated that the business has 4 employees and approximately 25 contractors and that the nominee is the Accounts Manager.
Fairfield Lawyers, the lawyers for Bright Star Solutions Pty Ltd, provided the Tribunal with the following evidence relating to a restructure of the business:
“I wish to confirm that the applicant ceased employment with Bright Star Solutions Pty Ltd on 30th June 2019 as the company had changed to a new structure effective from 1 July 2019 own by the same shareholders and Directors.”
The applicant provided evidence that the applicant was employed by Bright Star Solutions Pty Ltd as an Accounts Manager from 1 April 2017 to 30 June 2019 and with Bright Star Cleaning Pty Ltd from 1 July 2019 to the current period and undertakes the following designated duties and responsibilities:
·Analysing and reporting on the costs and revenues of the organisation.
·Reconciling, reviewing, and analysing information contained in financial reports to ensure accuracy and compliance with relevant accounting standards and statutory requirements.
·Summarise the current financial status of the organisation by collecting information, preparing balance sheet, profit and loss statement, and other reports.
·Compute taxes and prepare tax returns.
·Maintains accounting controls by preparing and recommending policies and procedures.
·Maintaining financial security by following internal controls.
·Integrating and utilising a wide range of accounting applications and tools such as MYOB, Xero, QuickBooks, Reckon and Cashflow Manager.
·Prepare the company’s budget and financial forecast and perform risk analysis.
The Tribunal obtained confirmation from the applicant that the nominee undertakes the following ANZSCO Code duties for an Accountant (General):
- assisting in formulating budgetary and accounting policies
- preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
- examining operating costs and organisations' income and expenditure
- providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
- providing financial and taxation advice on business structures, plans and operations
- liaising with financial institutions and brokers to establish funds management arrangements
- introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
- maintaining internal control systems
The applicant stated that he required an employee who was qualified as an accountant and was able to work with ZERO and preferably able to converse in the Singhalese and Tamil languages as most of the sub-contractors were of those language backgrounds.
The applicant stated that the nominee spends all her time on accounting duties and prepares accounting documentation to be provided to the business’s accountants, Dom Care, and maintains and reconciles ZERO transactions.
The applicant provided the Tribunal with a current organisation chart that identifies the nominee as Accounts Manager - ANZSCO Code: 221111.
The applicant provided evidence of contracts of employment with the nominee from 1 April 2017 to 30 June 2019 for the position of Accounts Manager contingent upon the grant of a 485 visa and a current contract from 28 January 2022 with a salary of $60,000 and superannuation of $5,700.
The applicant provided evidence of an IMMI approved sponsorship for the position of Accountant (General) – ANZSCO Code: 221111 from 4 February 2019 to 4 February 2024.
The applicant provided ATO submitted financial information for Bright Star Solutions Pty Ltd for the financial years 2017 and 2018, as follows:
2017
2018
Total Income
$324,066
$1,203,015
Total Expenditure
$152,260
$995,003
Net Income
$174,245
$217,484
Total Assets
$235,777
$205,312
Total Liabilities
$235,767
$205,302
The applicant provided ATO submitted financial information for Bright Star Cleaning Pty Ltd for the financial years 2020 and 2021, as follows:
2020
2021
Total Income
$437,414
$1,575,722
Total Expenditure
$371,718
$1,373,761
Net Income
$65,696
$201,961
Total Assets
$117,601
$297,113
Total Liabilities
$70,078
$45,476
The applicant submitted the following information relating to the pay-scales for the nominee’s position of Accountant (General) – ANZSCO Code: 221111 for the Melbourne area is between $42,665 and $80,624 with the median salary of $56,470, which it was stated is lower than the salary paid to the nominee.
The applicant provided the Tribunal with evidence of labour market testing, as follows:
“Seek.com.au: Please find attached relevant immigration documentation and a copy of the invoices for Company Accountant (Job ID 37082273) and Company Accountant (Job ID 37088496).
We can see that the day of the listing for the Ad 37082273 was on 28.08.2018 until 28.09.2018.
The day of listing for the Ad 37088496 was on 29.08.2018 until 29.09.2018”
The applicant also stated that the position was advertised on gumtree.
The applicant advised the Tribunal that the nominee had been on maternity leave and working part-time from home and is earning $2,500 per month during this period.
The applicant stated that the nominee is employed on a full-time salary of $60,000 and will be employed for a minimum of 2 years.
The applicant stated that it was his intention to sponsor the nominee on a 186 visa if the current nomination was approved.
Evidence of Rushka Augustin (the nominee)
The nominee stated that she arrived in Australia 16 July 2014 and held a student visa.
The nominee stated that she previously held a 485 visa and had qualifications as a Chartered Accountant with a Master of Professional Accounting.
The nominee stated that she was employed with Bright Star Solutions Pty Ltd from 1 April 2017 and with Bright Star Cleaning Pty Ltd from 1 July 2019.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Rushka Augustin in the nomination. The nomination includes the location of Bright Star Solutions Pty Ltd (Bright Star Cleaning Pty Ltd after restructure), at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Accountant (General) – ANZSCO Code: 221111.
For these reasons the requirements of r.2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.
For these reasons the requirements of r.2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved on 4 February 2017 and is valid until 2 February 2024.
For these reasons the requirements of r.2.72(5) are met
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act.
The Tribunal is satisfied that there is no evidence that the applicant has any outstanding debt under s.140ZO.
For these reasons the requirements of r.2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl.482.223 (if the nomination is in the Short-term stream) or cl.482.232 (if the nomination is in the Medium-term stream): r.2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of r.2.72(6) and r.2.72(14) do not apply.
For these reasons the requirements of r.2.72(6) are met.
Further, the Tribunal was provided with evidence that the nominee satisfied the English language test requirements with a PTE score of 57 that was undertaken on 7 April 2018 and has completed study of a Master of Professional Accounting in the Higher Education sector. The nominee satisfies the language test requirements in the relevant instrument that would apply as a nominee for a Subclass 482 visa in the Short-term stream, as applicable.
For these reasons the requirements of r.2.72(14) are met.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/051 Specified Occupations. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal is satisfied that IMMI 18/051, in force at the time of application, included the occupation of Accountant (General) – ANZSCO Code: 221111 [Item 7].
The Tribunal is satisfied that the nominee predominantly undertakes the duties and responsibilities identified in the following ANZSCO descriptor:
“ANZSCO - Australian and New Zealand Standard Classification of Occupations
ANZSCO Search
Accountants provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Registration or licensing may be required.
Tasks Include:
·assisting in formulating budgetary and accounting policies
·preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
·conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
·examining operating costs and organisations' income and expenditure
·providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
·providing financial and taxation advice on business structures, plans and operations
·preparing taxation returns for individuals and organisations
·liaising with financial institutions and brokers to establish funds management arrangements
·introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
·maintaining internal control systems
·may appraise cash flow and financial risk of capital investment projects
Occupations:
·221111 Accountant (General)
·221112 Management Accountant
·221113 Taxation Accountant
221111 Accountant (General)
Provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements. Registration or licensing may be required for certain services such as auditing.
Skill Level: 1
Specialisations:
·Financial Analyst
·Insolvency Consultant
·Insolvency Practitioner
For these reasons the requirements of r.2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant provided evidence through the recent contract of employment, dated 28 January 2022, that the nominee is employed as a full-time Accountant (General) – ANZSCO Code: 221111 on a current salary of $60,000 (advised in the contract of employment), plus superannuation of $5,700.
The duties performed by the nominee, which were confirmed in evidence are consistent with the tasks and duties provided in ANZSCO Code: 221111.
The applicant stated in evidence that it is the intention to support an application for the nominee to be granted a 186 visa following approval in the current case.
For these reasons the requirements of r.2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/051. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)).
In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The applicant provided evidence through the recent contract of employment that the nominee upon the grant of a 482 Visa will be employed as a full-time Accountant (General) – ANZSCO Code: 221111 on a salary of $60,000, plus superannuation contribution of $5,700.
For these reasons the requirements of r.2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).
The Temporary Skilled Migration Income Threshold (TSMIT) is currently AUD53,900 and the nominee is currently paid $60,000 for the nominated occupation of Accountant (General) – ANZSCO Code: 221111.
Further, the Tribunal is satisfied that the wage rate for an Accountant (General), as prescribed in the Professional Employees Modern Award 2010, is less that the salary of $60,000 that is paid to the nominee by the applicant.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) does not apply.
For these reasons the requirements of r.2.72(18)(a) and r.2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI: LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI: LIN – 18/036 that includes the following requirements:
“8 The advertisement of a nominated position
(1) This section is made under subsection 140GBA(5) of the Act.
Language
(2) For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.
Method
(3) For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:
(a) on a recruitment website with national reach in Australia; or
(b) in print media with national reach in Australia; or
(c) on radio with national reach in Australia; or
(d) if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.
(4) The following details of the position must all be included in the advertisement:
(a) the title or a description of the position;
(b) the skills or experience required for the position;
(c) the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;
(d) the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.
Duration
(5) For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a) print media;
(b) radio;
(c) website.”
The Tribunal is satisfied that the applicant has undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 that applied at the time of the engagement of the nominee, which was supported by evidence provided to the Tribunal prior to hearing. In this regard, the position of Accountant (General) – ANZSCO Code: 221111 was advertised with seek.com.au and gumtree from 12 July 2018, and with Seek from 28 August 2018 and 28 September 2018 and on gumtree and that the applicant appointed the nominee on 1 July 2019, with a new contract of employment applying from 28 January 2022.
The Tribunal is satisfied that the nominee was assessed by Chartered Accountants Australia on 28 October 2021 as a Accountant (General). As such, at the time that the position was advertised the nominee could be correctly designated in the advertisements between 28 August 2018 and 28 September 2018.
For these reasons, the labour market testing requirements in s.140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s.140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s.7 of the Migration (Skilling Australians Fund) Charges Act 2018, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s.140GB(2)(aa).
The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was required to meet training Benchmark A or training Benchmark B for the period of engagement of the nominee, for a one month period, as the employment nomination was submitted after 12 August 2018, the benchmark criteria does not apply.
As set out in paragraph 44 above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore, the Tribunal is satisfied that it should use its discretion to waiver any requirement to meet the training benchmark for a one month period of obligation.
Further, the Tribunal accepts that given that Bright Star Solutions Pty Ltd (Bright Star Cleaning Pty Ltd) was most recently approved as a standard business sponsor of the nominee on 4 February 2019 and was not required under the legislation in force, at that time, for the following 12 month period (save for one month), to either demonstrate it had met any specific training commitments or commit to meeting ongoing training obligations in connection with the approval of its sponsorship application. In this regard, post 12 August 2018 it is reasonable to disregard the requirements of the Regulation, as they were and accept that the applicant has met the training obligations.
For these reasons the requirements of s.140GB(2)(aa) are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Warren Stooke AM
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) …
(iv) …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii) …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i) a short term skilled occupation; or
(ii) a medium and long term strategic skills occupation; and
(b)either:
(i) the 6-digit ANZSCO code for the occupation; or
(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i) the person who nominated the occupation;
(ii) the nominee;
(iii) the occupation;
(iv) the position in which the nominee is to work;
(v) the circumstances in which the occupation is undertaken;
(vi) the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii) it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Remedies
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Jurisdiction
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