Citilink Piling (NSW) Pty Ltd (Migration)

[2021] AATA 2299

Citilink Piling (NSW) Pty Ltd (Migration) [2021] AATA 2299 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Citilink Piling (NSW) Pty Ltd

CASE NUMBER:  1813598

HOME AFFAIRS REFERENCE(S):          BCC2017/4166637

MEMBER:Terrence Baxter

DATE:22 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 22 June 2021 at 2:28pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – financial capacity to employ nominee for 2 years – no financial statements provided to department – statements and oral evidence to tribunal on review – government spending on infrastructure projects during COVID-19 – training requirements – expenditure for one relevant sponsorship year less than benchmark – reasonable to disregard non-compliance – total expenditure exceeded requirement – ongoing training and employment of training manager – genuine need to employ nominee – long-term employee in specialised industry – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth),
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i), (f)

CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2018 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, Citilink Piling (NSW) Pty Ltd, applied for approval on 8 November 2017. The applicant nominated Mr Sattidanand Joye (the nominee) in the position of Building Construction Supervisor. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate found that the applicant had not demonstrated that it had the financial capacity to ensure the nominee’s employment at his nominated salary for at least two years.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 May 2018.

6. Mr Nick Harutoonian, Managing Director of the applicant company, appeared before the Tribunal by audio conference on 17 March 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by audio conference.

7. The Tribunal exercised its discretion to hold the hearing by audio conference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by audio conference.

8. The applicant was represented in relation to the review by its registered migration agent, Ms Samantha Vitale of Auswide Visas of 99 York Street Sydney. The representative attended the Tribunal hearing by audio conference.

9. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in 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.

    Evidence presented before the hearing

11. The applicant provided to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) a number of documents, including:

    a.An Employment Contract dated 6 November 2017 together with a job description.

    b.Activity statements.

    c.Evidence from ABN Lookup regarding the applicant’s ABN.

    d.Evidence from ASIC regarding the applicant’s registration as a company.

    e.Promotional material.

    f.Evidence of payment of training expenditure.

12. The applicant provided to the Tribunal prior to the hearing further documents, including:

    a.A copy of the delegate’s decision.

    b.The applicant’s financial statements for the 2016 and 2018 financial years.

    c.The applicant’s tax returns for the 2016 to 2018 financial years.

    d.The nominee’s taxation assessments for the 2015 to 2018 financial years.

    e.The nominee’s PAYG payment summaries for the 2016 to 2018 financial years.

    f.An organisational chart.

    g.A submission from the representative, undated but provided to the Tribunal on 19 January 2021.

    h.A copy of the applicant’s standard business sponsorship approval.

    i.Internally generated documents of the applicant which were claimed to provide evidence of payment of training expenditure.

    j.A document titled Training Plan 2020.

    Evidence presented at the hearing regarding the company’s operations

13. Mr Harutoonian gave evidence regarding the applicant’s operations. He stated that the company had been established in 2008 and that it was involved in structural engineering. He said that the applicant was the largest medium-sized piling company in New South Wales and that it has recently expanded its operations to Queensland and the Australian Capital Territory. He said that the applicant was involved in the construction of foundations for bridges, railways and commercial and residential buildings. Mr Harutoonian said the nominee had been employed by the applicant for nine years and that, with his training, it was difficult to replace such an employee in a specialised industry such as piling.

14. Mr Harutoonian stated that the residential market had been adversely affected by the COVID-19 pandemic. However, he said that the Government had boosted infrastructure spending and that the applicant had concentrated on infrastructure work rather than residential projects.

15. The nominee gave evidence regarding his employment in the position and the tasks performed by him.

    Evidence presented after the hearing

16. After the hearing, the applicant produced to the Tribunal the following documents:

    a.Current evidence of salary being paid by the applicant to another employee in the same position as the nominee.

    b.A current employment contract.

    c.Current evidence regarding the applicant’s ABN.

    d.Evidence of the applicant’s payroll expenditure during the sponsorship period.

    e.Evidence of training expenditure.

    f.Evidence of payment by the applicant of the salary of a full-time trainer.

    g.A submission from the representative dated 4 February 2021.

17. In the submission dated 4 February 2021, the representative claimed that the applicant had spent sums of $59,526.89 and $11,937.37 in the first and second years of the applicant’s sponsorship period respectively. On 26 February 2021, the Tribunal forwarded to the applicant a request for information, requesting that the applicant provide itemised lists of invoices claimed to make up the totals referred to in the representative’s submission. In response to that request, the applicant produced to the Tribunal a submission from the representative dated 5 March 2021 accompanied by lists of training expenditure totalling $58,244 and $11,937.37 respectively.

18. The Tribunal invited the applicant to attend a further hearing (the further hearing) before the Tribunal to give further evidence and present arguments relating to the issues arising in relation to the decision under review. Mr Harutoonian appeared before the Tribunal by audio conference on 17 March 2021. The representative also attended the further hearing by audio conference.

19. Prior to the further hearing, the applicant produced to the Tribunal the following documents:

    a.A submission from the representative dated 17 March 2021.

    b.Further training invoices.

20. After the further hearing, the applicant produced to the Tribunal the following documents:

    a.A submission from the representative, undated but provided to the Tribunal on 6 April 2021.

    b.Further training invoices.

    c.A further copy of the document referred to in paragraph 16(f) above.

    d.A further submission from the representative, undated but provided to the Tribunal on 24 May 2021.

    e.Further training invoices.

    f.A further submission from the representative, undated but provided to the Tribunal on 9 June 2021.

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

21. 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) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

22. Having regard to the information provided by the Department, the Tribunal is satisfied that the application for approval was made on the approved form, was accompanied by the prescribed fee and included a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.5.19(3)(a)(i) are met.

23. Regulation 5.19(3)(a)(ii) requires that the application for approval identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in cl.457.223(4) of Schedule 2 to the Regulations. The person identified in the application is the nominee, Sattidanand Joye. Department records reveal that the nominee was granted a Subclass 457 visa on 3 November 2015, which was valid until 3 November 2019. Accordingly, the nominee held the required subclass of visa on the date of the application, 8 November 2017. The Tribunal is satisfied that the requirements of r.5.19(3)(a)(ii) are met.

24. Regulation 5.19(3)(a)(iii) requires that the application identifies an occupation, in relation to the position, that is listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and has the same 4-digit occupation unit code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa. The application identifies the occupation as Building Associate. The Tribunal finds that ANZSCO lists the occupation Building Associate, ANZSCO Code 312112, unit group code 3121. The Employment Contract states the nominee’s position to be Building Construction Supervisor. The ANZSCO classification provides that Building Construction Supervisor is a specialisation within the occupation Building Associate. The job description refers to the occupation Building Associate and sets out the duties and responsibilities of the position. At the first hearing, both Mr Harutoonian and the nominee gave evidence of the tasks performed by the nominee in the position. Having regard to the evidence as to the duties being performed by the nominee, the Tribunal is satisfied that the nominee is carrying on the occupation of Building Associate listed in ANZSCO. Accordingly, the Tribunal is satisfied that the requirements of r.5.19(3)(a)(iii) are met.

25. Regulation 5.19(3)(a)(iv) requires that the application identifies a need for the applicant to employ the nominee as a paid employee to work in the position under the applicant’s direct control. The Tribunal takes the view that r.5.19(3)(a) as a whole is directed towards requirements for the application form/process of an administrative nature, such that r.5.19(3)(a)(iv) could be met by a simple statement or certification of need. Support for this view can be found in the contrast between the wording of r.5.19(3)(a)(iv) and, for example, r.5.19(3)(i), which requires that there be a genuine need for the nominator to employ the nominee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment – and r.5.19(3)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the requirement in relation to this application to satisfy r.5.19(3)(i), the Tribunal considers that this issue is more appropriately considered under r.5.19(3)(i) later in these Reasons.

26. The Tribunal considers that r.5.19(3)(a)(iv) is more directed to the administrative process, consistent with the requirements of r.5.19(3) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Building Construction Supervisor. The Tribunal is therefore satisfied that the application for approval identifies a need to employ the nominee in that position under the applicant’s direct control such that r.5.19(3)(a)(iv) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of r.5.19(3)(i).

27. Given the above findings that the requirements in r.5.19(3)(a)(i), (ii), (iii) and (iv) are met, the requirement in r.5.19(3)(a) is met.

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

28. 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 is or was the standard business sponsor who last identified the nominee in a nomination – r.5.19(3)(b)(i)

29. The Department’s records confirm that the applicant, in August 2015, last identified the nominee in a nomination under s.140GB of the Act. Regulation 5.19(3)(b)(i) is therefore met.

    The applicant is actively and lawfully operating a business in Australia – r.5.19(3)(b)(ii)

30. This regulation requires that the applicant is actively and lawfully operating a business in Australia. The applicant produced various documents to the Tribunal including taxation returns, activity statements and financial statements. Mr Harutoonian gave evidence of the business activities of the applicant. The applicant’s financial statements for the 2017 to 2020 financial years show that the applicant received income exceeding $18 million for each of those years.

31. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely a structural engineering company. The requirement in r.5.19(3)(b)(ii) is therefore met.

    The applicant did not, as a standard business sponsor, meet r.1.20DA, or r.2.59(h) or r.2.68(i), in the most recent approval as a standard business sponsor – r.5.19(3)(b)(iii)

32. Department records confirm that the applicant was not granted its most recent standard business sponsorship on the basis of meeting r.1.20DA, r.2.59(h) or r.2.68(i) of the Regulations. Accordingly, the requirement in r.5.19(3)(b)(iii) is met.

33. Given the above findings that the requirements in r.5.19(3)(b)(i), (ii) and (iii) are met, the requirement in r.5.19(3)(b) is met.

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

34. 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 two of the three 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 two years in the three years immediately before the application.

35. The applicant has provided PAYG payment summaries for the nominee for the 2016 to 2018 financial years confirming his employment since at least 1 July 2015. Mr Harutoonian stated in evidence that the nominee had been employed full-time in the position by an associated company from approximately 2011 and by this applicant since 2013. As stated previously, the nominee was granted a Subclass 457 visa on 3 November 2015.

36. The Tribunal is accordingly satisfied that the nominee has been employed full-time in Australia in the position for which he held a Subclass 457 visa for at least two of the three years immediately before the nomination application on 8 November 2017. Accordingly, the requirement in r.5.19(3)(c)(i) is met.

37. 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)

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

39. The nominee is a person to whom r.5.19(3)(c)(i) applies (see paragraph 36 above) and is therefore required to meet this requirement.

40. The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the 2021 employment contract. The contract does not actually refer to full-time employment. However, the document does provide that the nominee is required to work at least 38 hours per week which qualifies as full-time employment. The contract does not specifically state that the employment will be for at least two years after approval of the nomination, if the nomination is approved. However, the document does state that the nominee’s employment is permanent and ongoing to commence when his Subclass 186 visa is approved, and this is sufficient to meet the requirement of employment for at least two years. The Tribunal is satisfied that the nominee will be employed on a full-time basis for at least two years. Accordingly, the requirement in r.5.19(3)(d)(ii) is met.

41. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The delegate found that, based on the information provided to the Department, the applicant had not demonstrated that it had the financial capacity to employ the nominee in the position for at least two years. This decision is not surprising, given that no financial statements whatsoever were provided to the Department. The only financial documents which were provided to the Department were activity statements, which, as the delegate observed, do not assist in assessing the profitability of the applicant’s business operations or its asset position. It may be that the applicant’s 2017 financial statements were not available at the date of decision (24 April 2018), but it is to be expected that the 2016 financial statements were then available. Those statements disclose that the applicant had a profit before tax of $2,526,321 in the 2016 financial year and had net assets of $2,513,495 as at 30 June 2016. Had that document been provided to the Department, a different decision may have followed.

1. The financial statements provided by the applicant to the Tribunal disclose that the applicant recorded sales in the 2018, 2019 and 2020 financial years of $24,469,658, $18,778,738 and $21,691,750 respectively. In those years, the applicant recorded net profits before taxation of $2,621,987, $1,257,863 and $1,447,030 respectively and had net assets of $3,973,828, $2,854,109 and $2,440,585 respectively. The Tribunal is satisfied that the applicant is in a sound financial position and has the financial capacity to employ the nominee in the position of Building Construction Supervisor in accordance with the Employment Contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in r.5.19(3)(d)(i) is met.

2. 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)

3. 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.

4. The employment contract provides that the applicant will pay to the nominee a salary of $75,000 per annum plus superannuation in accordance with the superannuation guarantee legislation.

5. The applicant produced evidence that its employee, Kumar Kumarguru, is employed in the same position as and performs equivalent work to the nominee. The applicant also produced evidence that the salary paid to that employee in the most recently completed financial year (to June 2020) was $69,730.83 and that his current salary is $70,000 per annum.

6. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

7. Accordingly, the requirement in r.5.19(3)(e) is met.

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

8. 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.

9. In relation to the Subclass 457 scheme, a person who was a standard business sponsor of at least one primary sponsored person was required by r.2.87B of the Regulations to comply with requirements relating to training of Australian workers, in each year they engaged a Subclass 457 visa holder. The annual periods during which this requirement applies are expressed to commence on the day of the person’s approval as a standard business sponsor and each anniversary of that day.

10. The period of the applicant’s most recent sponsorship approval is for five years from 7 October 2015. The nominee was issued a Subclass 457 visa on 3 November 2015, which was valid until 3 November 2019 and has been employed continuously by the applicant since 2013.

11. The training benchmarks and training requirements are specified in Instrument IMMI 13/030. The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business. The training benchmarks for an established business are:

    (A)recent expenditure, by the business, to the equivalent of at least 2% of the 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.

12. The instrument provides that expenditure that can count towards Benchmark B includes:

    a.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.

    b.Evidence of payment of external providers to deliver training for Australian employees.

    c.On-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage and demonstrating:

    i.The learning outcomes of the employee at each stage.

    ii.How the progress of the employee will be monitored and assessed.

    iii.How the program will provide additional and enhanced skills.

    iv.The use of qualified Trainers to develop the program and set assessments; and

    v.The number of people participating and their skill/occupation.

    d.Employment of a person who trains the businesses Australian employees who are Australian citizens and Australian permanent employees as a key part of their job.

13. The instrument provides that expenditure that cannot count towards Benchmark B includes training that is:

    a.Delivered on-the-job, other than on-the-job training which meets the requirements set out in the preceding paragraph.

    b.Confined to only one or a few aspects of the businesses (sic) broader operations, unless the training is in the primary business activity.

    c.Only undertaken by persons who are not Australian citizens or permanent residents.

    d.Only undertaken by persons who are principals in the business or their family members.

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

14. There is no evidence before the Tribunal of any expenditure by the business during the sponsorship period in payments allocated to an industry training fund that operates in the same industry as the business to meet Benchmark A.

15. It is necessary to determine the periods of time, if any, in respect of which the applicant was or is required to comply with the training benchmarks. The relevant regulation, being r.2.87B of the Regulations, was repealed by the Migration Amendment (Skilling Australians Fund) Regulations 2018. A transitional provision introduced by those Regulations provides that a person is not required to comply with r.2.87B(2) or (3) in relation to a period of 12 months ending on or after the commencement day (12 August 2018). As the only annual periods of the applicant’s most recent sponsorship which ended prior to 12 August 2018 were the years which ended on 7 October 2016 and 7 October 2017, the Tribunal finds that the applicant is required to comply with the training obligations in respect of those periods only.

16. The manner of provision of evidence of training expenditure by the applicant has been unhelpful. The Tribunal makes this observation based on the following:

    a.In order to meet Benchmark B, the applicant is required to establish that its training expenditure is equivalent to at least 1% of the payroll of the business in the relevant period. Prior to the first hearing, the applicant provided details of its payroll for various financial years but not for the relevant sponsorship years.

    b.By way of evidence of payment of training expenditure, the applicant submitted prior to the first hearing an internally generated document titled ‘Account Transactions’. This document contained a list of payments claimed to have been made by the applicant under four headings, namely, Subscriptions, Training, Travel – International for training purpose and Travel – National for training purpose. No invoices were provided to substantiate payment of these expenses, the totals for each sponsorship year were not provided and, in most cases, the trainee was not identified.

    c.At the first hearing the Tribunal explained the requirements of the Regulation to Mr Harutoonian and allowed a period of time after the hearing for the applicant to provide further information in relation to the training requirement.

    d.After the first hearing, the applicant provided details of its payroll expenditure for each sponsorship year. The applicant also provided a large number of invoices together with a submission by the representative that the applicant’s training expenditure in the first sponsorship year was $59,526.89 and that the training expenditure in the second year was $11,937.37.

    e.On 26 February 2021, the Tribunal wrote to the applicant requesting that it provide itemised lists of the invoices claimed to make up the amounts of training expenditure referred to in the representative’s submission.

    f.On 5 March 2021, the applicant provided a detailed list of the invoices previously provided to the Tribunal. The representative provided a further submission that some of the invoices had been duplicated in the applicant’s previous calculation of its training expenditure and that the amounts now claimed to have been expended by the applicant were $58,244 in the first sponsorship year and $11,937.37 in the second sponsorship year.

    g.The Tribunal then invited the applicant to attend the further hearing. On the day of that hearing, the applicant provided further training invoices to the Tribunal, together with a submission from the representative that the new total of training expenditure for the second sponsorship year was $14,660.97.

    h.At the second hearing, Mr Harutoonian conceded that further amounts included in the lists of training expenditure had been duplicated. The representative acknowledged that, in preparing the schedules of training expenditure, she may have failed to differentiate between certain invoices and statements. Mr Harutoonian also conceded that certain items of expenditure which had been claimed as training expenditure could not be counted towards Benchmark B.

    i.On 6 April 2021, the applicant provided further training invoices together with a submission from the representative that the applicant’s training expenditure in the first sponsorship year was $45,674.77 and that its expenditure in the second sponsorship year was $7,968, a total of $53,642.77.

    j.The applicant subsequently submitted additional training invoices totalling $22,693.88. The representative submitted that the applicant’s total training expenditure for the two relevant years was $78,201.11. However, no attempt has been made by the applicant to establish the training expenditure in each sponsorship year.

17. The Tribunal notes that some of the training expenditure claimed by the applicant was for employees of the applicant to attend conferences for continuing professional development. This type of expenditure is not included in IMMI 13/030 as either expenditure that can count towards the benchmark or expenditure that cannot count towards the benchmark. The Tribunal also notes that such expenditure can count towards the benchmark under Instrument IMMI 17/045 which commenced on 1 July 2017.  (This instrument is not relevant to the present application because it applies only to nominations lodged on or after the commencement date.) However, as such expenditure is not excluded from expenditure which can count towards the benchmark under Instrument IMMI 13/030, and as it can count towards the benchmark under the later instrument, the Tribunal is prepared to accept that the expenditure can count towards the benchmark in the present case.

18. The Tribunal is satisfied that the applicant’s payroll expenditure in the first sponsorship year, including superannuation, was $3,261,957, and that its payroll expenditure in the second sponsorship year was $3,789,210. Accordingly, the training Benchmark B amounts for the two years were $32,620 and $37,893 respectively, a total for the two years of $70,513.

19. According to the invoices submitted by the applicant as at 6 April 2021, the applicant’s training expenditure in the two years of the sponsorship period were $45,674.77 and $7,968 respectively. The training invoices totalling $22,693.88 referred to in paragraph 57(j) above were not broken up between the two sponsorship years. According to the Tribunal’s analysis of those invoices, expenditure of $9,251.70 was incurred in the first sponsorship year and $12,692.18 was incurred in the second sponsorship year. Accordingly, the Tribunal finds that the applicant’s training expenditure in the first sponsorship year totalled $54,926.47 and that its training expenditure in the second year totalled $20,660.18, a total expenditure of $75,586.65.

20. Accordingly, the Tribunal finds that the applicant’s training expenditure in the second sponsorship year of $20,660.18 was below the benchmark figure of $37,893. Therefore, the Tribunal finds that the applicant has failed to establish that it incurred expenditure equivalent to at least 2% of the payroll of the business to an industry training fund or equivalent to at least 1% of the payroll of the business in the provision of training to employees of the business during each year of the sponsorship period. Accordingly, the applicant has failed to establish that it has complied with the applicable obligations under Division 2.19 of the Regulations relating to the applicant’s training requirements during the period of its most recent approval as a standard business sponsor, and the requirement in r.5.19(3)(f)(i)(B) and consequently in r.5.19(3)(f)(i) is not met.

21. The Tribunal then needs to consider whether it is reasonable, under r.5.19(3)(f)(ii), to disregard r.5.19(3)(f)(i). At the first hearing, Mr Harutoonian submitted that, if the Tribunal made a finding that the training requirement had not been met, it was reasonable to disregard the non-compliance because the applicant had recently employed a trainer of its employees. He stated that, because the business was growing and operating interstate, the applicant was training its employees in groups to meet the relevant standards and that a large amount of training was required.

22. The representative made submissions that non-compliance should be disregarded for the following reasons:

    a.That the training benchmarks were abolished in 2018.

    b.That the applicant had continued to deliver training to employees after the requirement had been abolished.

    c.That the applicant had employed a full-time training manager at a cost of over $125,400 per annum.

23. The applicant produced evidence of the employment of Roberto Brotonel at a salary of $125,400.07 for the 2020 financial year. His position in the organisational chart is described as Allocation Manager. The applicant also produced a copy of its 2020 Training Plan.

24. In considering whether to disregard r.5.19(3)(f)(i), the Tribunal notes the Department’s policy which states that ‘delegates should not apply regulation 5.19(3)(f)(ii) inflexibly but must always consider the merits of a particular case’. The policy in relation to disregarding r.5.19(3)(f)(i) provides that disregarding this regulation should only be considered if the decision maker is satisfied the applicant has not, at any stage of the most recently approved standard business sponsorship, failed to maintain their commitment to the ongoing training of Australian citizens and permanent residents in their industry, as specified within the training benchmarks.

25. For example, decision makers may form the view that it is reasonable to disregard r.5.19(3)(f)(i) if:

    the applicant has demonstrated meeting a combination of both Training Benchmark A and B in a required year during the term of the most recently approved sponsorship (for example, an amount equal to 1.5% of payroll was placed in an industry training fund and an amount equal to 0.5% of payroll spent on internal training to make up 2% of payroll spent on training)

    or

    the applicant has an aggregate expenditure on training over the term of their most recently approved sponsorship commensurate with the total training commitment for that period.

26. Conversely, a decision maker may form the view that it is not reasonable to disregard r.5.19(3)(f)(i) if the applicant has failed to demonstrate they have met either Training Benchmark A or B (or a combination of both), in full in each relevant year of their most recently approved standard business sponsorship.

27. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.

28. The Tribunal finds that it is reasonable to consider the policy when determining whether to disregard non-compliance with r.5.19(3)(f)(i). The first scenario referred to in the policy does not apply in the case of this applicant because there is no evidence of any payment by the applicant to an industry training fund during the sponsorship period. Therefore, there can be no aggregation of payments of expenditure to meet both Benchmarks A and B in a required year of the sponsorship.

29. The second scenario referred to in the policy does apply in this case. The Tribunal has found that the applicant’s total training expenditure during the sponsorship period was $75,586.65 which is in excess of the total benchmark figure of $70,513. Accordingly, the applicant’s aggregate expenditure exceeded the total training commitment for that period. The Tribunal also takes into consideration the employment by the applicant of a full-time training manager after the end of the sponsorship period. Having regard to all of the evidence, the Tribunal finds that it is reasonable to disregard r.5.19(3)(f)(i).

30. Accordingly, the requirement in r.5.19(3)(f) is met.

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

31. 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 of the Regulations. 

32. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

33. Accordingly, the requirement in r.5.19(3)(g) is met.

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

34. 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.

35. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

36. Accordingly, the requirement in r.5.19(3)(h) is met.

    Genuine need to employ nominee: r.5.19(3)(i)

37. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

38. Both Mr Harutoonian and the nominee gave evidence of tasks performed by the nominee in his position. Mr Harutoonian said that the applicant had spent a considerable amount of time in training the nominee and that he had developed specialised skills. He said that the nominee had been employed by either the applicant or an associated company for over nine years and that the applicant would suffer hardship if it were to lose the services of the nominee.

1. The Tribunal accepts that the nominee has been employed by the applicant or an associated company for almost nine years and that the applicant’s business is specialised and in a field in which the nominee has developed expertise. The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Building Construction Supervisor under the nominator’s direct control.

2. Accordingly, the requirement in r.5.19(3)(i) is met.

3. 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

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

   Terrence Baxter
   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

   (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

   (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.