C.J.Fulham & A.M.Mcharry & L.J.Mcharry & P Vondra (Migration)

[2020] AATA 3139

C.J.Fulham & A.M.Mcharry & L.J.Mcharry & P Vondra (Migration) [2020] AATA 3139 (29 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  C.J. Fulham & A.M. McHarry & L.J.

McHarry & P. Vondra

CASE NUMBER:  1721509

DIBP REFERENCE(S):  BCC2017/613797

MEMBER:Alison Mercer

DATE: 29 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2020 at 11:23am

CATCHWORDS

MIGRATION – application for approval of nomination of position – temporary residence transition stream – financial capacity to provide full-time employment for two years – nominee employed full-time continuously for more than five years already – nominator’s plans for continued operations during COVID-19 restrictions – financial flexibility between associated entities – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 359(2)

Migration Regulations 1994 (Cth), r 5.19(3)(d)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 August 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, C J Fulham, A M McHarry, L J McHarry and P Vondra (trading as Rococo Restaurant Group), applied for approval on 14 February 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).

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 for its nominated position of Cook.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d) of the Regulations, which requires that the applicant will provide the nominee for the nominated position with full time employment for at least 2 years. The delegate was not satisfied, from the information provided, that the applicant had the financial capacity to pay the nominee the proposed salary of $54,000 per year for 2 years, having regard to its number of employees and wages bill in its most recent financial statements.

5. The Tribunal received a review application on 12 September 2017.  It was signed on behalf of the applicant by its financial controller, Mr Nikhil Rampadaruth. It was accompanied by a copy of the delegate’s decision and an authority by which a registered migration agent, Mr Nicholas Benjamin, was appointed as the applicant’s representative and authorised recipient for correspondence for the purposes of the review. In addition, copies of all documents and submissions provided to the Department in connection with the nomination application were also provided.

6. On 1 November 2019, the Tribunal wrote to Mr Rampadaruth, via the agent, pursuant to s.359(2) of the Act, to invite him to provide updated and current information to demonstrate that the applicant met all of the criteria in r.5.19(3). A copy of r.5.19(3) and examples of the kind of information that would assist the Tribunal were provided, and the information was due by 15 November 2019.

7. On 15 November 2019, the applicant’s agent provided a range of documents to the Tribunal, many of which were copies of documents provided to the Department. Also provided were the following:

   ·    letter dated 19 November 2019 from Mr Christopher Fulham, Partner and Owner of Rococo Restaurant Group, advising that the applicant’s business has had a dedicated training officer since 2011 (with 3 different incumbents to date), and setting out the duties of that position;

   ·    Business Activity Statements (BAS) for July 2018 to September 2018;

   ·    organisational chart (undated);

   ·    Cook training manual;

   ·    Australian Business Register registration for the applicant, and business name registrations for Rococo St Kilda;

   ·    job description for the nominated position;

   ·    applicant’s tax return and financial statements for 2017/18;

   ·    Payscale salary report for Cooks;

   ·    submissions from the agent dated 13 and 15 November 2019;

   ·    advertisements for Cooks in Melbourne, variously dated;

   ·    superannuation statement for the nominee for 2017/18;

   ·    letter of appointment for the nominee dated 9 February 2017, and confirmation of employment dated 13 November 2019 provided by Mr Christopher Fulham, owner/partner of the applicant;

   ·    payslips for the nominee for October – November 2019 and payroll activity details statement for the nominee for period September 2018 to November 2019;

   ·    PAYG payment summaries for the nominee for financial years 2015/16, 2016/17, 2017/18;

   ·    letter from the applicant’s accountant dated 12 November 2019;

   ·    letter dated 13 November 2019 from Mr Pelham addressing the applicant’s employment of Training Officers;

   ·    letter dated 18 November 2019 from the applicant’s accountant providing payroll and training expenditure for the applicant’s most recent period of approval as a Standard Business Sponsor (November 2016 to November 2019);

8. On 25 November 2019, the Tribunal wrote again to Mr Rampadaruth to invite him to attend a hearing on 16 December 2019 on behalf of the applicant.

9. At the hearing on 16 December 2019, the Tribunal took evidence from Mr Rampadaruth and Mr Fulham on behalf of the applicant, and received oral submissions from the applicant’s agent.

10. In summary, Mr Rampadaruth and Mr Fulham told the Tribunal that:

• Mr Ramapadaruth had been with the Rococo Group since 2011 as the applicant’s accountant and financial controller. He had set up an independent office since the nomination was lodged, but before that had worked in-house. Since setting up his own office, he continued to carry out the same role in preparing financial statements and so on for the applicant;

• in the 3 year period from 20 February 2014 to 20 February 2017, the nominee started work on a full-time basis (after having initially started in a part time role) in late 2014 (either 13 October 2014 as per her letter of employment, or December 2014, as per another letter);

• the applicant changed from MYOB to Xero accounting software, which was why there were minor differences in the nominee’s PAYG Summary Statements for several of the same financial years (the 2016, 2017 and 2018 financial years) but these could be clarified by reference to the nominee’s tax returns for those financial years, which they undertook to provide following the hearing;

• the nominee worked for the Acland Street restaurant (ABN 69 916 745 094) for the whole of the relevant period, and continued to do so. Her most recent employment agreement was the one dated 9 February 2017;

• they could provide employment contracts for any other full-time Cooks at Acland Street who were Australian citizens or permanent residents, as evidence that the nominee’s contract terms were no less favourable;

• they would provide BAS and Income Activity Statement (IAS) statements that were missing between September 2016 and October 2019;

• they relied on payments to an internal Training Officer (a position which had several different incumbents in the relevant period) to meet the Training Benchmarks requirement, but had not been able to find all of the contracts of employment for each incumbent. However, they undertook to provide the PAYG Summary statements for the 2017, 2018 and 2019 financial years (or if these could not be located within the records, they could provide screen shots from the accounting software or their individual tax returns). The incumbents were Mr David McClean, Mr Gurdeep Kaila and Mr Joshua James in that period. Their primary role was Training but they did sometimes monitor the service delivery on the floor of the restaurant; and

• the 2018/19 financial statement was not finalised yet but a draft could be provided.

1. Following the hearing, on 30 December 2019, the agent provided the following additional material to the Tribunal:

• bank account statements for the nominee, variously dated;

• superannuation statements for the nominee for January to July 2015 and January to July 2019, and the financial years 2016/17 and 2018/19;

• letters of appointment for the nominee dated 13 October 2014 and 9 February 2017;

• payslips for other Cook employees of the applicant;

• further payslips and PAYG summary statements of other Cook employees of the applicant;

• job description for the nominee’s position of Cook;

• letter dated 6 December 2019 from the applicant’s accountant providing details of the organisational structural changes it had undertaken; and

• BAS for October 2016 to March 2019 for the applicant.

1. On 11 May 2020, the matter was reconstituted to a new Tribunal Member, as the original Presiding Member was unable to complete the review following his resignation from the Tribunal.

2. On 14 July 2020, the Tribunal wrote to the applicant via its agent to advise of the reconstitution of the review application to the new Presiding Member. The Tribunal advised that the new Presiding Member had reviewed the documents provided to date and listened to the audio recording of the hearing, and requesting confirmation of whether the nominee remained employed, clarification of the effect of the COVID19 pandemic on the nominee’s position and the applicant’s business, with particular reference to the requirement in r.5.19(3)(d) that the applicant be able to offer the nominee full time employment for at least 2 years. The Tribunal requested up to date financial information from the applicant, and noted that it might be in a position to make a favourable decision on the papers, depending on the material received from the applicant.

3. On 24 July 2020, the applicant’s agent provided the following additional material:

• legal submission;

• BAS for period April 2019 to March 2020 for the applicant and for Kingsway Group Pty Ltd;

• consolidated financial statements for the 2018/19 financial year (ending 30 June 2019); and

• letter from the applicant’s accountant date 22 July 2020.

1. The agent made the following points in the submission (in summary):

   ·     the applicant’s St Kilda restaurant still intended to employ the nominee as a Cook on a full time basis for 2 years, as evidenced by the letter from its accountant, Mr Rampadaruth;

   ·     despite the temporary drop in sales due to the COVID19 restrictions, the applicant was confident that it had the financial capacity to do so, relying on the strength of the Rococo Group as a whole;

   ·     the Group was previously trading strongly, prior to the COVID19 restrictions, and it continued to operated. The Group anticipated resuming normal table service once restrictions were lifted.

2. In his letter of 22 July 2020, Mr Rampadaruth stated as follows:

   …

   I confirm that I am the accountant for the Rococo Restaurant Group which includes the Rococo Restaurant in Acland St, St Kilda, operated by the above partnership entity, trading as Rococo St Kilda, ABN 98 629 064 026.

   Rococo St Kilda affirms its intention to employ [the nominee] as a Cook on a full time basis, for a period for at least two years, and beyond if possible. While the restaurant is currently restricted to operating a home delivery service during the COVID19 restrictions, there is every intention of reopening for full sit down restaurant service as soon as government regulations permit. The owners are confident that the business can continue to trade in a satisfactory manner until then.

   I confirm we have reviewed the financial position of Rococo St Kilda ABN 98 629 064 026 which we believe will have the financial capacity to meet all employment obligations to employ the nominee… as a Cook for at least two years. The business continues to trade in a satisfactory manner, allowing due consideration for its temporarily reduced turnover due to COVID restrictions.

   As requested, enclosed are the draft Consolidated Rococo Group Accounts for FY ending 30 June 2019 and BAS statements lodged since then. The sales of the Rococo St Kilda Restaurant are reflected in the BAS of the Kingsway Group Pty Ltd, ABN 85 629 066 433.  The partnership of C J Fulham, A M McHarry, L J McHarry and P Vondra, trading as Rococo St Kilda is the payroll vehicle for the overseas employees of the Rococo St Kilda Restaurant.

   The Rococo Restaurant Group consists of a number of associated entities*, including wholesale food sales, and the Rococo Restaurant in Hawthorn. These companies have inter-company loan arrangements and can provide each other with cash flow at critical periods.  They are:

   ·Rococo St Kilda (ABN 98 629 064 026)

   ·Rococo Glenferrie Road Pty Ltd (ACN 168 941 982)

   ·Kingsway Group Pty Ltd (ACN 629 036 433)

   ·Welwyn Australia Pty Ltd (ACN 629 064 026)

   ·Moorside Australia Pty Ltd (ACN 629 062 755)

   The partners of Rococo St Kilda also own 100% of the shares of the above associated entities.

   …

   *The definition of ‘associated entity’ at regulation 1.03 is defined as an associated entity under section 50AAA of the Corporations Act 2001. ‘Entity’ for this purpose is defined at section 64 of the Corporations Act as being ‘… a reference to a natural person, a body corporate (other than an exempt public authority), a partnership or a trust; and (b) includes, in the case of a trust, a reference to the trustee of the trust.’

   …

3. 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

1. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

The application must be compliant: r.5.19(3)(a)

1. 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.

2. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

3. Therefore, it finds that r.5.19(3)(a) is met.

Status of the nominator: r.5.19(3)(b)

1. 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.

2. The Department’s records indicate that , C J Fulham, A M McHarry, L J McHarry and P Vondra (trading as Rococo Restaurant Group) (Rococo St Kilda, ABN 69 916 745 094) was approved as a standard business sponsor between 9 December 2013 and 22 November 2016, and from 22 November 2016 to 22 November 2019.  The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Ms Amanpreet Kaur, and nominated her for a subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

3. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided from 2016/17 to 2018/19, recent BAS and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia as part of a group of associated entities known as the Rococo Group.

4. Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is met.

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

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

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

2. The Tribunal has reviewed the occupations specified in IMMI 13/067 for the purposes of the second dot point above, and is satisfied that the nominated occupation of Cook is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

3. The relevant 3 year period in this case is 13 February 2014 to 13 February 2017, as the nomination application was made on 14 February 2017.

4. The Tribunal is satisfied on the evidence before it that:

• the nomination was made on 14 February 2017 for the position of Cook;

• the relevant 3 year period is therefore 13 February 2014 to 13 February 2017;

• the nominee previously held a subclass 572 Student visa valid until 3 December 2014;

• the nominee applied for a subclass 457 visa on 5 November 2014 on the basis of her nomination by the applicant as a Cook, and was granted a bridging visa A on that date;

• she was granted a subclass 457 visa on 3 December 2014, which was valid until 3 December 2018; and

• she had therefore worked for the applicant in the nominated position for over 2 years in the 3 year period immediately prior to the nomination application being lodged.

1. Accordingly, given the above, as well as the employment contracts, tax returns and PAYG summary statements for the nominee provided, the Tribunal is satisfied that the requirement in r.5.19(3)(c) is met.

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

1. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

2. As noted above, the Tribunal is satisfied that the nominee has been employed by the applicant since late 2014 continuously on a full time basis, based on the financial documentation provided.

3. In relation to its future financial capacity to do so, the Tribunal notes that the nominee is employed by the applicant partnership (trading as the Rococo Group) and has been working in its Rococo Acland Street St Kilda restaurant.  As noted at paragraphs 29 to 30 above, the Tribunal is satisfied that the nominee had been employed as a Cook for at least 2 years prior to the nomination application, made on 14 February 2017.

4. Since that time, the applicant has provided documentary evidence of the nominee’s ongoing employment as a Cook in the St Kilda restaurant, including since the COVID19 pandemic restricted the operations of the Rococo Group’s restaurants to home delivery service. The applicant’s accountant and one of its owners/partners have expressed confidence that the applicant has the capacity to weather a period of restricted operations and return to its former profitability in due course. While it is impossible for them – or the Tribunal – to say that this will definitely occur, given the uncertainties associated with the pandemic, the Tribunal nevertheless gives weight to the fact that the BAS for the partnership and Kingsway Group Pty Ltd (the company through the St Kilda restaurant trades) show continued salary payments throughout the first quarter of 2020, compared to 2019, albeit with reduced sales. The Tribunal also gives weight to the letter from the accountant Mr Rampadaruth, dated 22 July 2020, in which he notes the above and also notes that the Rococo Group is made up of several companies (associated entities) trading collectively under the partnership, thus allowing financial flexibility between the entities.

1. This and the evidence provided of the applicant’s payments to the nominee to date leads the Tribunal to give the benefit of the doubt and to be satisfied that the applicant company remains financially capable of continuing to employ the nominee in her full time position on a salary of $54,000 plus superannuation, for the next 2 years.

2. Given the above findings, the Tribunal is satisfied that the requirement in r.5.19(3)(d) is met.

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

1. 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.

2. The nominee’s most contract of employment for the nominated position is dated 9 February 2017 and provides that the nominee’s salary is $54,000 per year plus superannuation. 

3. The Tribunal accepts evidence given at hearing that there is at least 1 other Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee.  The Tribunal therefore needs to be satisfied that the terms and conditions of employment applicable to the nominated position will be 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.

4. The Tribunal has reviewed the employment contract provided for another full time Cook, Jatinder Singh, dated 1 June 2016 and is satisfied that it contains the same terms and conditions (including salary of $54,000 plus superannuation) as the nominee’s contract of employment. 

5. In addition, the Tribunal has consulted a range of sources of information, including:

• the Payscale website (accessed 29 July 2020) indicates that a Cook in Melbourne, Australia earns an average salary of $22.01 per hour (which annualises to approximately $43,492, excluding penalties): Australian government’s Job Outlook website (accessed 29 July 2020) indicates that a Cook earns on average $1,068 per week before tax (which annualises to approximately $55,536): for various full time Cook positions in all of Melbourne listed on Seek.com.au as at 29 July 2020 where a salary range is given:

  oCook, Eastern Suburbs, Child Care Centre, $21 - $29 per hour (annualising to approximately $41,496 to $57,304) (advertised 7 July 2020);

  oChef/Cook, South Eastern suburbs, café, catering and food preparation business, $25 to $28 per hour (annualising to $49,400 to $55,328 (advertised 23 July 2020); and

  oChef, private advertiser, Northern suburbs, $50,000 to $69,999 (advertised 28 July 2020).

1. The Tribunal finds that the nominee’s salary is higher than the Payscale average earnings and just below the Job Outlook average earnings.  It is within the ranges listed in the Seek job advertisements cited above.  Accordingly, on balance, the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location.

2. The Tribunal is further satisfied that the most recent contract of employment dated 9 February 2017 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES), as do the employment contracts of other employees of the applicant. 

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

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

1. 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.

2. The Tribunal notes that the applicant’s approval as a standard business sponsor (as in force at the time this nomination application was made on 14 February 2017) ran between 22 November 2016 to 22 November 2019.

3. The training requirements applicable for an established business with approval as a standard business sponsor in that period in the applicable period are set out in written instrument IMMI 13/030 as follows:

• A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

• B) recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

1. IMMI 13/030 provided that expenditure that can count towards Training Benchmark B includes:

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

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

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

• employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

• evidence of payment of external providers to deliver training for Australian

employees

• on-the-job training that is structured with a timeframe and clearly identified

increase in the skills at each stage, and demonstrating:

• the learning outcomes of the employee at each stage;
• how the progress of the employee will be monitored and assessed;
• how the program will provide additional and enhanced skills;
• the use of qualified trainers to develop the program and set

assessments; and

• the number of people participating and their skill/occupation

1. However, it does not include expenditure on training that is:

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

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

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

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

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

1. The applicant relied on its employment of a dedicated Training Officer to meet Training Benchmark B during the period 22 November 2016 to 22 November 2019. Evidence was provided indicating that the applicant employed 3 different employees in this capacity over the relevant period. From this, the Tribunal is satisfied that the key part of that job was and is to provide training to the applicant’s Australian employees (and its overseas employees), although the incumbent may at times also perform other tasks, such as restaurant floor supervision. The employment contracts provided indicate that the Training Officer position salary varied per year.  For the relevant period, the Tribunal accepts from the financial documents provided by the applicant that the salary expenditure and payroll amounts were as follows:

Training Manager Salary	Year 1 (Nov 2016 to 2017)	Year 2 (Nov 2017 to 2018)	Year 3 (Nov 2018 to 2019)
Joshua James	$8,779	-	-
David Maclean	$39,898	-	-
Gurdeep Singh Kaila	$24,234	$66,652	$82,500
Total Training Expenditure	$72,911	$66,652	$82,500
Payroll	$2,583,476	$2,756,179	$2,671,216
% of payroll	2.8%	2.4%	3.1%

1. Given this finding, the Tribunal is satisfied from the information set out in the table above that the applicant complied with its SBS training obligations in the relevant period it was an approved SBS by meeting the Training Benchmark B requirements in each of the relevant years.

2. Accordingly, the Tribunal finds that the requirement in r.5.19(3)(f) is met.

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

1. 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. 

2. The Tribunal has reviewed the Department's records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator. It notes that the applicant was the subject of monitoring by the Department in 2017 and that the conclusion of the monitoring officers was that its compliance with its immigration obligations was satisfactory.

3. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(f) are met.

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

1. 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.

2. There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations.

3. Accordingly, the Tribunal finds that the requirements of r.5.19(3)(h) are met.

4. 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

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

Alison Mercer
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. The application must:

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

   (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

1. The Minister must, in writing, approve a nomination if:

   (a)the application for approval:

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

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

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

   (A)is listed in ANZSCO; and

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

   (b)the nominator:

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

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

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

   (c)either:

   (i)       both of the following apply:

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

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

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

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

   (ii)      all of the following apply:

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

   (B)the nominator nominated the occupation;

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

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

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

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

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

   (i)are provided; or

   (ii)would be provided;

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

   (f)either:

   (i)       the nominator:

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

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

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

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

   (g)either:

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

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

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