Energetic Cleaning Services Pty Ltd (Migration)

Energetic Cleaning Services Pty Ltd (Migration) [2021] AATA 5636 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Energetic Cleaning Services Pty Ltd
CASE NUMBER:  1822567
HOME AFFAIRS REFERENCE(S):          BCC2017/2307716
MEMBER:Terrence Baxter
DATE:29 June 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 29 June 2021 at 10:36am
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – adverse information known to Immigration about the applicant – applicant failed to provide the requested information within the prescribed period– applicant has failed to establish the amount of its payroll for the three relevant financial years–no training summary or Training Programs were submitted to the Department as evidence of training expenditure – unreasonable to disregard the adverse information –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
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 16 July 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).
The applicant, Energetic Cleaning Services Pty Ltd, applied for approval on 29 June 2017. The applicant nominated Ms Karamjeet Kaur Malhi (the nominee) in the position of Program or Project Administrator. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g)(i) of the Regulations because the delegate found that there was adverse information known to Immigration about the applicant and that it was not reasonable to disregard the adverse information under r.5.19(3)(g)(ii).
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 August 2018.
On 17 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant criteria under r.5.19(2) and (3) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The invitation notified the applicant that the requested information should be received by the Tribunal by 1 December 2020. The applicant provided information to the Tribunal on 2 December 2020 and on 4 December 2020. Accordingly, the applicant failed to provide the information within the prescribed time for responding to the invitation.
Where a review applicant is invited to provide further information in accordance with s.359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s.359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s.360(3) of the Act. Of note, the effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.
Although the applicant did not request this, the Tribunal considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its application for review. The Tribunal decided to allow the applicant additional time to provide evidence that the applicant met the requirements of r.5.19(3)(f) of the Regulations. On 22 February 2021, the Tribunal wrote to the applicant inviting it to provide information that demonstrated that it met r.5.19(3)(f). On 8 March 2021, the applicant provided further information to the Tribunal in response to that invitation.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence presented to the Department
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.The applicant’s financial statements for the 2014 to 2017 financial years.
b.A PAYG payment summary of the nominee for the 2017 financial year.
c.A screenshot from the applicant’s website, a list of the applicant’s clients as at 2017 and a company profile.
d.An ASIC extract for the applicant.
e.An Employment Agreement dated 26 June 2017 and job description.
f.Two invoices from Empower Skills dated 28 October 2016 and 23 June 2017 with Training Plans.
g.A submission from the applicant dated 4 April 2018.
h.Payslips of the nominee.
i.An Organisational Chart.
j.Activity statements for the period from April 2017 to December 2017.
k.Evidence of Workcover insurance.
The applicant produced to the Tribunal the following documents prior to the request for information on 22 February 2021:
a.A copy of the delegate’s decision.
b.Further copies of various documents provided to the Department.
c.An updated job description.
d.Taxation returns for the 2018 and 2019 financial years.
e.Evidence of duties performed by the nominee.
f.The applicant’s financial statements for the 2018 and 2019 financial years with a projected financial statement for the 2020 financial year.
g.A current ASIC extract for the applicant.
h.An updated Organisational Chart.
i.An Employment Agreement dated 1 November 2018.
j.PAYG payment summaries and taxation documents of the nominee.
k.A taxation return of the Wilgrif Investment Trust.
l.Submissions of the applicant dated 9 May 2019 and 27 November 2020.
m.An Australia and New Zealand Standard Classification of Occupations (ANZSCO) extract for the occupation of Program or Project Administrator.
n.Notification of the applicant’s approval as a standard business sponsor for the period from 11 March 2013 to 11 March 2016.
o.Training Programs for the period March 2013 to February 2014 with a handwritten document titled 2014 Training.
p.Training invoices from Professional Development Training Pty Ltd (PD Training) dated 23 April 2014, 28 April 2014, 5 May 2014, 15 May 2014 and two invoices from Test and Tag Short Course dated 22 April 2014.
q.Payroll activity summaries prepared by the applicant for the 2014 and 2016 financial years.
r.A list of the applicant’s current contracts as at July 2020.
s.Evidence of public liability insurance.
t.A quote from PD Training for the amount of $7,000 dated 24 April 2015.
u.A bank receipt for a payment of $7,000 to PD Training dated 13 May 2015.
The applicant also produced to the Tribunal the following documents in response to the request for information on 22 February 2021:
a.A submission from the representative dated 8 March 2021.
b.A submission from the applicant dated 5 March 2021. (This submission bears the date 5 March 2020. However, the submission expressly refers to the Tribunal’s request for information of 22 February 2021 and it appears clear that the reference to 2020 is a typographical error.)
c.A summary, prepared by the applicant, of training benchmark amounts and amounts claimed to have been expended by the applicant on training for the 2013, 2014 and 2015 years accompanied by documents titled Training Programs (the training summary).
d.Further copies of the invoices mentioned in paragraph 13(p) above.
e.A training plan prepared by Empower Skills.
f.The applicant’s financial statements for the 2013 to 2016 financial years.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
Regulation 5.19(3)(f)(i)(B) requires that the applicant 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.
In relation to the Subclass 457 visa scheme, a person who was a standard business sponsor of at least one primary sponsored person was required by r.2.87B to comply with requirements relating to training, specified by the Minister in an instrument in writing for that subregulation, in each year they sponsored a Subclass 457 visa holder.
The period of the applicant’s most recent sponsorship approval is from 11 March 2013 to 11 March 2016. The records of the Department show that the applicant was the approved sponsor of the nominee as the holder of a Subclass 457 visa from the month of April 2013. Documents provided to the Tribunal establish that the nominee was employed by the applicant from the month of April 2013. Accordingly, the applicant is required to comply with the training requirement for each year of its sponsorship approval.
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.
The Instrument provides that expenditure that can count towards Benchmark B includes:
a.Evidence of payment to external providers to deliver training for Australian employees.
b.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.
c.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.
The Instrument provides that expenditure that cannot count towards Benchmark B includes training that is (inter alia) delivered on-the-job, other than on-the-job training which meets the requirements set out in the preceding paragraph.
The evidence of training expenditure to external providers submitted by the applicant can be summarised as follows:
a.in the period from March 2012 to February 2013 – in its submission of 5 March 2021, the applicant claimed to have paid an amount of $5,045 to TAFE for training. No evidence to substantiate this payment has been submitted to the Tribunal.
b.In the 2014 financial year – four invoices from PD Training in April and May 2014 totalling $6,600 and two invoices from Test and Tag Short Course in April 2014 totalling $723.80 – a total for the year of $7,323.80.
c.In the 2015 financial year – a quotation from PD Training and a receipt issued by the Commonwealth Bank for a payment of $7,000 to that organisation on 13 May 2015.
d.There is no evidence of training expenditure to external Trainers in the 2016 financial year.
e.In the 2017 financial year – invoices and receipts from Empower Skills dated 28 October 2016 for $6,400 and dated 23 June 2017 for $6,600 respectively – a total for the year of $13,000.
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.
The applicant has not produced receipts to confirm that the invoices referred to in paragraph 22(b) have been paid. The Tribunal notes that the word “Paid” has been handwritten on the invoices and accepts that these invoices were paid. However, the applicant has not claimed that the payment of $7,000 to PD Training on 13 May 2015 should count towards Benchmark B. In the training summary submitted with the applicant’s submission of 5 March 2021, the applicant claimed that the amount of $19,058.64 had been expended for internal training in the 2015 year, but made no claim that any expenditure had been made for external training in that year. The payments in the 2014 financial year could count towards Benchmark B (payment to an external provider) provided that certain requirements are met.
In order to meet Benchmark B, the applicant is required to establish that the payment to the external providers is equivalent to at least 1% of the payroll of the business in the relevant period. It is necessary to consider the meaning of “the payroll of the business” for this requirement. The Department’s policy contained in its Procedures Advice Manual (PAM3) states that for this requirement, payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments, defined as wages in the Act relating to payroll tax in the relevant state/territory, that the applicant has paid to their employees during the relevant 12-month period.
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”.
The definition in the policy is consistent with the definition in the Macquarie Dictionary (accessed August 2020) which relevantly defines “payroll” as:
Noun 1. A roll or list of persons to be paid, with the amounts due.
2. the aggregate of these amounts.
3. the money that is actually paid out.
The definition in the policy is also consistent with the terminology contained in the Payroll Tax Act 1971 of Queensland under which payroll tax is imposed on all taxable wages, and wages are relevantly defined to mean any wages, remuneration, salary, commission, bonuses or allowances paid or payable (whether at piecework rates or otherwise and whether paid or payable in cash or in kind) to an employee as an employee, and, without limiting the generality of the foregoing, includes a superannuation contribution. Accordingly, the Tribunal finds that the term payroll in the Instrument for any period includes wages and superannuation paid for that period.
The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the amounts to be included in the calculation of an applicant’s payroll as set out in the policy are appropriate and considers that it is reasonably open to the Tribunal to determine the amount of the payroll on that basis. Accordingly, the Tribunal finds that the term payroll in the instrument for any period includes wages and superannuation paid for that period.
Further on this point, the Department’s policy states that for this requirement, payroll expenditure includes payments made to contractors or sub-contractors during the same period if work provided by the contractor is related to the service/product provided by the sponsor’s business (for example, the contractor is a bricklayer and the applicant is a construction company) – regardless of whether such payments are included for payroll tax purposes or not.
Mr Griffin provided oral evidence to the Tribunal at the hearing of another application for review involving the same nomination applicant (AAT matter 1812748). At that hearing, the Tribunal (as presently constituted) discussed with Mr Griffin the use of contractors by the applicant and the Department’s policy referred to in the preceding paragraph of these Reasons. When asked whether the applicant engaged quite a number of contractors, he stated “Yes, both contractors and employees.” When asked what sort of work the contractors did, he said “Cleaning.” He stated that cleaners did the same work, whether engaged as employees or contractors.
On 4 May 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting it to comment on or respond to this information which the Tribunal considered would, subject to its comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:
During the hearing of an application for review by Energetic Cleaning Pty Ltd (matter number 1812748) on 15 December 2020, Mr Scott Griffin stated that subcontractors engaged by the applicant performed cleaning work. He stated that cleaners did the same work, whether engaged as employees or contractors.
This information is relevant to the review because the Tribunal may take the view that payments to contractors should be included in the applicant’s payroll when determining the extent of training expenditure required to meet the relevant benchmark.
If we rely on this information in making our decision, we may find that the applicant has failed to comply with the applicable obligations under Division 2.19 of the Migration Regulations 1994 relating to the applicant’s training requirements during the period of its most recent approval as a standard business sponsor and that the applicant does not meet the requirements of r.5.19(3)(f)(B) and affirm the decision under review.
Energetic Cleaning Services Pty Ltd is invited to give comments on or respond to the above information in writing.
The comments or response should be received by 18 May 2021.

The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. Mr Griffin, on behalf of the applicant, responded to the invitation on 17 May 2021. The applicant firstly pointed out that the Tribunal’s invitation referred to the refusal of a business sponsorship nomination instead of a Subclass 186 nomination refusal. While the applicant was correct in pointing out this error, the error is not relevant to the outcome of this application for review as the applicant went on to make detailed submissions in response to the invitation.
Relevantly, on the issue of the use of contractors by the applicant, Mr Griffin stated as follows:
Our use of subcontractors has been for various reasons one of which is that we use subcontractors to service and repair our various cleaning machines. Even if there were some subcontractors who were cleaning contractors the subcontractor fee paid to them should not be regarded as Payroll for calculating the training benchmarks. Importantly our payroll should not be wrongly defined by AAT as including independent contractors when in context the training benchmark requirements was aimed at provision of training to employees.
On 28 May 2021, the Tribunal wrote again to the applicant pursuant to s.359A of the Act inviting it to comment on or respond to this information which the Tribunal considered would, subject to its comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:
During the hearing of an application for review by Energetic Cleaning Pty Ltd (matter number 1812748) on 15 December 2020, the Member spoke to Mr Griffin regarding the Department’s policy on calculation of an employer’s payroll expenditure as follows: “Under the policy, payroll expenditure includes payments made to contractors and sub-contractors if the work provided by the contractor is related to the service or product provided by the sponsor’s business. You do engage quite a number of contractors, do you?” Mr Griffin replied “Yes, both contractors and employees.” Later, the Member referred to payments to contractors recorded in the applicant’s financial statements and asked Mr Griffin ”What sort of work did those contractors do?” He replied “Cleaning.”
This information is relevant to the review because the Tribunal may take the view that payments to contractors should be included in the applicant’s payroll when determining the extent of training expenditure required to meet the relevant benchmark.
If we rely on this information in making our decision, we may find that the applicant has failed to comply with the applicable obligations under Division 2.19 of the Migration Regulations 1994 relating to the applicant’s training requirements during the period of its most recent approval as a standard business sponsor and that the applicant does not meet the requirements of r.5.19(3)(f)(B) and affirm the decision under review.
Energetic Cleaning Services Pty Ltd is invited to give comments on or respond to the above information in writing.
The comments or response should be received by 11 June 2021.
The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. Mr Griffin, on behalf of the applicant, responded to the invitation on 9 June 2021. In his reply, Mr Griffin stated:
Your letter has made reference to me for which while I do state that we do engage some contractors and employees but I disagree that the contractors who perform specialised process for my cleaning business are cleaners. When during the hearing on 15 December 2020, the member asked me “what search sort of work these contractors do” – my response was “Cleaning” by which I meant for my cleaning company. (specialised tasks).
Mr Griffin submitted that payments to subcontractors should not be included in the applicant’s payroll when determining the extent of training expenditure required to meet the relevant benchmark. In support of this submission, Mr Griffin submitted:
a.That the applicant’s standard business sponsorship was approved from 11 March 2013 to 11 March 2016 and that there had been changes in regulations in that period, for which reason the contractor payments should not be added to the applicant’s payroll.
b.That the Tribunal had wrongly applied the training benchmark in matter 1812748.
c.That the training benchmark was applied from the anniversary dates of the applicant’s standard business sponsorship approval and not by financial years.
d.In relation to the tasks performed by contractors, Mr Griffin stated as follows:
I would like to advise that the contractors I use in my business are very specialised and are not cleaners but are contractors to perform specific tasks for the company some of which are as per below:
(i)Specialised commercial and industrial carpet cleaners.
(ii)Specialised High Pressure Cleaners for taller buildings.
(iii)Specialised Glass Cleaners for Commercial, Industrial buildings and for high-rise buildings.
(iv)Specialised Strip and Seal industrial contractors. Specialised equipment repair technicians for my various capital equipment for cleaning devices.
(v)Specialised contractors such as for my company websites and social media etc.
Mr Griffin submitted that the applicant had not failed to comply with the applicable obligations relating to training requirements and that the applicant does meet the requirements of r.5.19(3)(f)(B) (sic). He also made submissions as to whether it would be reasonable to disregard, under r.5.19(3)(f)(ii), any non-compliance with r.5.19(3)(f)(i).
The Tribunal has considered whether the payments recorded in the applicant’s financial statements as having been made to contractors should be included in the applicant’s payroll for the purposes of calculating the required benchmark contributions under the instrument during the sponsorship period. The observations regarding the Tribunal’s consideration of the Department’s policy in paragraphs 26 and 28 above also apply to its consideration of the policy regarding payments to contractors set out in paragraph 29. Again, the Tribunal agrees that the amounts to be included in the calculation of an applicant’s payroll as set out in the policy are appropriate and considers that it is reasonably open to the Tribunal to determine the amount of the payroll on that basis. The Tribunal finds that payroll expenditure for the applicant includes payment made to contractors or subcontractors during the relevant period if the work provided by the contractor is related to the service provided by the applicant’s business.
The applicant failed to provide to the Tribunal particulars of the payroll of the business for each of the sponsorship years ending on 11 March 2014, 11 March 2015 and 11 March 2016. It is therefore not possible for the Tribunal to calculate the amount which represents 1% of the payroll of the business in each of those years in order to determine whether Benchmark B has been met in each year. The applicant has provided financial statements for the financial years ending on 30 June 2014, 2015 and 2016. As the sponsorship years roughly correspond to the 2014 to 2016 financial years, the Tribunal has considered whether it would be appropriate to rely on the payroll figures for those financial years when determining whether the training obligations have been met.
In the applicant’s submission of 9 June 2021, Mr Griffin submits that the training obligations apply from each anniversary date of the applicant’s sponsorship approval and not by financial years. The Tribunal acknowledges this submission to be correct. However, as noted in the preceding paragraph, the applicant has failed to provide particulars of its payroll for each of the sponsorship years. If the Regulation is to be read literally, the applicant has failed to establish that it has complied with its obligations relating to training requirements during each year of the sponsorship because the applicant has failed to provide information to enable the benchmark amount to be calculated. In order to be fair to the applicant, the Tribunal is prepared to consider whether the training obligations have been met, relying on payroll figures in the respective financial years.
The following table sets out the applicant’s payroll expenditure and the training Benchmark B amount (calculated from the applicant’s financial statements) for the 2014 to 2016 financial years if all payments to contractors were to be included in the payroll figures:

2013/2014

   2014/2015

   2015/2016

Wages

   $249,827

   $372,742

   $382,337

Salaries – associated persons

   $183,461

   $180,000

   $183,461

Superannuation (excluding SG charge and consultants)

    $39,341

   $60,420

    $53,671

Contractors

  $1,106,397

$943,724

$1,338,863

Total expenditure

  $1,579,026

$1,556,886

$1,958,332

Benchmark B amount

    $15,790

   $15,568

    $19,583

The expenditure on contractors in the above table is taken from the item “Contr, s/contr and commisn” in the corresponding financial statements. However, in its submission of 5 March 2021, the applicant provided several tables of payroll expenses and described the corresponding payments as subcontractor fees. The Tribunal has accordingly adopted these payments as having been made to contractors or subcontractors in the relevant years.
It then becomes necessary to consider whether all payments to contractors should be included in the applicant’s payroll for the respective financial years. As recorded in paragraph 30 above, Mr Griffin, when asked at the hearing of the earlier application what sort of work the contractors did, said “Cleaning.” He stated that cleaners did the same work, whether engaged as employees or contractors. These answers were unequivocal and made no reference to contractors engaged for repair of capital equipment or for provision of information technology services.
In the applicant’s submission of 17 May 2021, Mr Griffin stated that one of the reasons for the use of subcontractors by the applicant was for the service and repair of cleaning machines. The submission acknowledges that some subcontractors were cleaning contractors. In the applicant’s submission of 9 June 2021, Mr Griffin has listed a range of specific tasks performed by the applicant’s contractors. The first four of these tasks relate to cleaning but the fifth and sixth tasks refer to repair of capital equipment and information technology services.
Based on Mr Griffin’s evidence at the earlier hearing, the Tribunal may have found that all payments to contractors were related to the service provided by the applicant’s business and that accordingly the whole of the payments to contractors should be included in the applicant’s payroll for the relevant year. However, the Tribunal notes that Mr Griffin has now stated that some payments to contractors were not related to the service provided by the applicant’s business, that is, cleaning. Accordingly, the Tribunal accepts that some payments to contractors were not related to that service and that the total amount paid to contractors should not be included in the applicant’s payroll for the relevant year.
The applicant has acknowledged that some payments to contractors were related to the service provided by the applicant’s business. The applicant has not sought to provide evidence of the amount of payments to subcontractors which were not so related to the applicant’s cleaning business. Accordingly, the Tribunal finds that the applicant has failed to establish the amount of its payroll (including payments to contractors for work related to the service provided by the applicant’s business) for the three relevant financial years.
In the applicant’s submission of 9 June 2021, Mr Griffin stated that there had been “changes in regulations” during the period of the applicant’s standard business sponsorship. The Tribunal notes that there was a change to r.5.19(3)(f)(i) during the period of the sponsorship. However, the Tribunal finds that the relevant regulation is the regulation which was in force on the date of lodgement of the nomination application, namely 29 June 2017 and that any regulation which may have been in force prior to the introduction of that regulation is not relevant to this application.
As the applicant has failed to provide to the Tribunal particulars of the payroll of the business (as defined in paragraph 46 above) for each of the sponsorship years ending on 11 March 2014, 11 March 2015 and 11 March 2016 and has also failed to provide particulars of its payroll (as so defined) for the 2014, 2015 and 2016 financial years, 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.
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). In the applicant’s submission of 5 March 2021, Mr Griffin stated as follows:
a.That the applicant’s commitment to training its Australian staff was in existence prior to and after the expiry of the sponsorship period.
b.That the applicant had provided internal training which should count towards the benchmark. The training summary which accompanied the submission contains details of the training claimed to have been provided for staff and the persons who provided training.
c.That the applicant is committed to training its Australian staff and that the training is an important element to enhance skills for the staff leading to greater productivity for the applicant.
Mr Griffin reiterated those statements in the applicant’s submissions of 17 May 2021 and 9 June 2021.
The applicant has submitted that the payments to external providers set out in paragraph 22(b) should be accepted as counting toward Benchmark B and that the applicant provided extensive on-the-job training throughout the sponsorship period which should also count toward that benchmark. The applicant submitted that the on-the-job training continued before and after the sponsorship period.
The Tribunal will deal first with the payments to external providers. As set out in paragraph 24 of these Reasons, the Tribunal has accepted that payments to external providers totalling $7,323.80 were made in the 2014 financial year. The Tribunal accepts that these payments were for the training of Australian employees and has had regard to these payments in determining whether r.5.19(3)(f)(i) should be disregarded.
The Tribunal will now deal with the on-the-job training. The Training Programs accompanying the training summary set out details of internal training claimed to have been provided by the applicant for employees. These programs were for the following periods:
·     October 2012 to September 2013
·     March 2013 to February 2014
·     October 2013 to September 2014
The applicant’s submission of 5 March 2021, which accompanied the submission of the training summary, refers to a Training Program for the period from October 2014 to September 2015. That Training Program was not received by the Tribunal. On 4 May 2021, the Tribunal wrote to the applicant through its representative enquiring whether it was the intention of the applicant to provide more documents than those which accompanied the submission of 5 March 2021. No further documents were provided to the Tribunal in response to that enquiry. However, the Tribunal notes that the applicant’s submission states that the value of internal training for the period from October 2014 to September 2015 was $19,058.64 and the Tribunal is prepared to consider this matter on the basis of the applicant’s submission.
The Training Programs were quite detailed and contained columns with the following headings:
·     Training subject/Annual need
·     Timeframe
·     Learning outcomes
·     Increase and enhancement in skills
·     Progress monitoring and assessment
·     Qualified Trainers
·     Number of trainees
·     Trainee skills/occupations
According to the Training Programs, the qualified Trainers who provided the training were Mr Les Grimson, Mr Jeremy Williams, Mr Scott Griffin, Ms Debbie Thompson and Ms Rachel Huston. The value of the internal training provided by the applicant according to the Training Programs in each year was recorded as:
a.October 2012 to September 2013 – $22,241.31
b.October 2013 to September 2014 – $19,058.64
c.The value of the internal training provided in the period from March 2013 to February 2014 has not been calculated in the training program provided for that period. However, as part of that period falls within the year ending in September 2013 and the remainder falls within the year ending in September 2014, it is not necessary to further consider the value of training in this period.
d.As recorded in paragraph 53 above, the applicant has submitted that the value of internal training provided from October 2014 to September 2015 was $19,058.64.
The Tribunal has considered the Training Programs to assist in determining whether to disregard non-compliance with r.5.19(3)(f)(i).
The Tribunal has carefully considered the Training Programs and sets out hereunder an assessment of the program for the period from October 2012 to September 2013 as being indicative of the whole of the programs. The value of the training is calculated as follows:
Trainers:
Scott Griffin, Director, 10 years of experience, wage is $2,900 per week, $76.30 per hour x 111 hours = $8,469.30
Debbie Thompson, Manager, six years of experience, wage is $2,400 per week, $63.15 per hour x 108 hours = $6,820.20
Les Grimson, Supervisor, three years of experience, wage is $1,200 per fortnight, $15.79 per hour x 207.6 hours = $3,278.01
Jeremy Williams, Asst Manager, $23.55 per hour x 156 hours = $3,673.80.
The calculations for the period from October 2013 to September 2014 are similar to that set out in the preceding paragraph except that they include training by Ms Rachel Huston in place of Ms Debbie Thompson. Ms Huston’s position is stated to be Manager. Her experience is stated to be two years in the year ended September 2014 and five years in the year ended September 2015. Her salary is stated to be $1,250 per week in each of those years.
The qualifications of the respective Trainers according to the Training Programs are:
a.Mr Griffin – He is qualified to deliver the training program considering his 8 years’ experience in the industry.
b.Mr Grimson – He is qualified to deliver the training program considering his 30 years’ experience in the industry.
c.Mr Williams – He is qualified to deliver the training program considering his 8 years’ experience in the industry.
d.Ms Thompson – She is qualified to deliver the training program considering her managerial experience of six years.
e.Ms Huston – She is qualified to deliver the training program considering her managerial experience of six years.
There is no evidence before the Tribunal of the qualifications of the Trainers to provide training to the applicant’s employees. The only evidence provided to the Tribunal of the training qualifications of the Trainers is their experience in the industry, briefly stated in the training programs as recorded in the preceding paragraph.

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 r.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.
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.
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.
The same considerations regarding the application of the policy set out in paragraphs 26 and 28 above apply in the Tribunal’s consideration of r.5.19(3)(f)(ii).
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.
The second scenario also does not apply because, based on the information provided by the applicant, the Tribunal is unable to determine the applicant’s total training commitment over the term of the sponsorship period. As the Tribunal has found that the applicant has failed to provide particulars of the payroll of the business for each sponsorship year to enable the training commitment to be determined for each year, it follows that the total training commitment over the term of the sponsorship period cannot be determined. Even if the amounts paid to contractors in the three relevant financial years are totally disregarded for the purposes of assessing the payroll of the applicant, the wages, salaries to associated persons and superannuation for the three years (taken from the table in paragraph 41 above) total $472,629, $613,162 and $619,469 respectively. The total for these three years is $1,705,260, so that the benchmark B amount for the period is $17,053. The payments to external providers of $7,323.80 fall well below this required amount.
The Tribunal has considered whether the training claimed to have been provided as recorded as internal training should influence the Tribunal to disregard the non-compliance with r.5.19(3)(f)(i). The applicant has provided details of internal training only for the period up to September 2015. No particulars have been provided of any internal training during the balance of the sponsorship period up to March 2016, although the applicant’s submission of 5 March 2021 does state that the applicant continued with internal training after September 2015.
It is evident that, at some stage, the applicant believed that the amount of the payroll to be considered in calculating the training expenditure required to meet the benchmark was the amount of wages and salary paid to employees and associated persons only. The applicant submitted to the Department and to the Tribunal a handwritten calculation titled “2014 Training” in which the required expenditure was calculated to be $4,377.89, being 1% of the applicant’s payroll as set out in the payroll activity summary for 2014.
No training summary or Training Programs were submitted to the Department as evidence of training expenditure. These documents were first provided to the Tribunal on 2 December 2020. The Tribunal is concerned whether the amount of training claimed to have been provided in the Training Programs was actually delivered or whether the Training Programs may be a retrospective attempt to establish compliance with the training requirement rather than a genuine program to deliver training to employees.
It may be that some training was delivered by the applicant to its employees. However, the Tribunal is not satisfied that training was provided to the extent claimed by the applicant and the Tribunal is not influenced to disregard non-compliance with r.5.19(3)(f)(i) based on the internal training.
The Tribunal has also considered the payments to external providers before the commencement and after the end of the sponsorship period. A payment of $5,045 is claimed to have been made in the period to February 2013. The payments of $6,400 and $6,600 in 2016 and 2017 are expressed to be for those years. The Tribunal does take those payments into account. However, given the likely expenditure required by the applicant on training if payments to relevant contractors were included in the applicant’s payroll for the respective years, the payments to external providers are insufficient to influence the Tribunal to disregard non-compliance with r.5.19(3)(f)(i) based on the claimed payment prior to commencement of the sponsorship period and the payments after the sponsorship period.
The applicant has made written submissions that the Tribunal should disregard r.5.19(3)(f)(i). These submissions include:
a.That the Regulation has changed during and after the sponsorship period. This submission has been addressed in paragraph 47 above.
b.That the training benchmark has been abolished and will remain abolished at the time of this decision.
The Tribunal acknowledges that the relevant instrument has been repealed. The Tribunal is also aware that, as a result of an amendment to the Regulations in 2018, a person is not required to comply with r.2.87B(2) or (3) in relation to a period of 12 months of a business sponsorship ending on or after 12 August 2018. However, all annual periods of the applicant’s sponsorship had ended well before that date. The Tribunal considers that it is appropriate to deal with this matter based on the instrument which applied during the applicant’s standard business sponsorship period.
Having regard to all of the evidence, the Tribunal finds that it is not reasonable to disregard r.5.19(3)(f)(i).
Accordingly, the requirement in r.5.19(3)(f) is not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse 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
(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.

[2021] AATA 5636

29 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

2013/2014	2014/2015	2015/2016
Wages	$249,827	$372,742	$382,337
Salaries – associated persons	$183,461	$180,000	$183,461
Superannuation (excluding SG charge and consultants)	$39,341	$60,420	$53,671
Contractors	$1,106,397	$943,724	$1,338,863
Total expenditure	$1,579,026	$1,556,886	$1,958,332
Benchmark B amount	$15,790	$15,568	$19,583