Go Australia Group Pty Ltd (Migration)

[2022] AATA 4022

Go Australia Group Pty Ltd (Migration) [2022] AATA 4022 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Go Australia Group Pty Ltd

REPRESENTATIVE:  Mr Michael Thomson

CASE NUMBER:  1907020

HOME AFFAIRS REFERENCE(S):          BCC2018/915428

MEMBER:Terrence Baxter

DATE:10 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 10 November 2022 at 8:50am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – marketing specialist – financial capacity to provide full-time employment in position for two years – nominee was stood down during COVID pandemic but will be re-employed – nominating company provides administration and consulting services to related entity – service fee paid by entity sufficient to pay nominee’s salary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)

CASES
JP Restaurants and Catering Pty Ltd (Migration) [2021] AATA 4694
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 15 March 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Go Australia Pty Ltd, applied for approval on 26 February 2018. The applicant nominated Mrs Yuri Ida (the nominee) in the position of Marketing Specialist. From about May 2013, the applicant operated immigration consultancy, education consultancy and settlement advisory service businesses. The applicant also acquired a 50% interest in the company Referlegal Pty Ltd (Referlegal) which conducts a legal practice under the business name Phoenix Law & Associates. From March 2021, following amendments to migration legislation, the applicant transferred its migration advisory business to Referlegal and continued to conduct its other business activities.

3. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

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

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations because the delegate found that the applicant did not demonstrate that the nominee will be employed on a full-time basis in the position for at least two years.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 March 2019.  

7. A director of the applicant, Mr Hideki Shimizu, appeared before the Tribunal by video conference on 27 July 2022 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 video conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video 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 video conference.

9. The applicant was represented in relation to the review by its legal practitioner Mr Michael Thomson of Fullagar Chambers from 20 June 2022. The representative attended the Tribunal hearing by video conference.

10. 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

11. In the nomination application, the applicant indicated that it was applying in the Temporary Residence Transition stream. However, in a submission to the Tribunal dated 27 July 2022, the representative submitted that, in the alternative, the applicant was able to comply with reg 5.19(4)(d) and that therefore the requirements under reg 5.19(4) (the Direct Entry nomination stream) had been met. The Tribunal discussed the requirements of reg 5.19(4) with Mr Shimizu at the hearing, particularly the requirement in reg 5.19(4)(h)(i)(AAA) that the occupation is applicable to the nominee in accordance with the specification of the occupation by the Minister in the relevant instrument.

12. The occupation of Marketing Specialist is specified in the relevant instrument, being IMMI 18/005. The occupation is subject to an inapplicability condition as follows:

    The position is in a business that has an annual turnover of less than $1,000,000.

    Mr Shimizu conceded at the hearing that the applicant’s business has an annual turnover of less than $1,000,000 and that the applicant could not meet the requirement in reg 5.19(4)(h)(i)(AAA). In his submission to the Tribunal dated 9 August 2022, the representative advised that the applicant no longer pressed its ground for review under reg 5.19 (4).

13. Accordingly, 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 reg 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 prior to the hearing

14. The applicant produced to the Department of Home Affairs (the Department) the following documents:

    a.An organisational chart from 2018.

    b.An undated employment contract of the nominee prepared by Phoenix Law Office.

    c.Market salary research.

    d.Correspondence and receipts for training expenditure made on 3 October 2014, 16 May 2016, 2 February 2017 and 16 February 2018.

    e.A job description for the position.

    f.An Australian and New Zealand Standard Classification of Occupations (ANZSCO) extract for the occupation of Marketing Specialist.

    g.PAYG payment summaries of the nominee for the 2016 to 2017 financial years.

    h.A submission from the applicant’s accountant dated 14 February 2018.

    i.Activity statements for the period from July 2017 to September 2018.

    j.An ASIC company summary extract of the applicant.

    k.A financial report of the applicant for the 2017 financial year.

    l.A profit and loss statement of the applicant for the 2018 financial year.

    m.A submission from Mr Shimizu regarding genuine need for the position dated 18 February 2019.

    n.A submission from the applicant in response to a request for information dated 22 February 2019.

    o.Bank statements of the nominee for the period from 12 January 2019 to 21 February 2019.

    p.Various website screenshots, Facebook pages and a newspaper ad of the applicant for Conveyancing Home, Phoenix Law, Injury and Accident Lawyers and Go Australia Visa Consultant.

    q.An annual superannuation statement of the nominee for the 2018 financial year.

    r.A bank statement extract confirming payment of a training contribution.

    s.Examples of promotional emails of Phoenix Law.

    t.An untranslated article.

    u.Photographs of the business premises and employees.

    v.An ASIC current and historical company extract of Conveyancing Home Australia Pty Ltd.

    w.An ASIC business name extract of Conveyancing Home QLD.

    x.An ASIC current and historical company extract of Referlegal.

    y.An ASIC business name extract of Shimizu Kokusai Law Office.

    z.An ASIC record of business name registration of Go Australia Visa Consultant.

    aa.An ASIC company statement and company summary of the applicant.

    bb.A current ABN Lookup form of the applicant.

    cc.An ASIC business name extract of Go Australia Visa Consultant and Go Australia Concierge.

15. The applicant produced to the Tribunal the following documents:

    a.A copy of the delegate’s decision.

    b.Submissions from the former representative dated 5 April 2022.

    c.An updated ASIC company summary of the applicant.

    d.An ASIC record of business name registration of Go Australia Concierge.

    e.An ASIC record of business name registration of Go Australia Visa Consultant.

    f.An updated ASIC current and historical company extract of the applicant.

    g.Financial reports of the applicant for the 2017 to 2021 financial years.

    h.Company tax returns of the applicant for the 2020 and 2021 financial years.

    i.Copies of various documents provided to the Department.

    j.The pre-filing report of the nominee for the 2019 and 2020 financial years.

    k.Notice of taxation assessment of the nominee for the 2016 to 2020 financial years.

    l.PAYG payment summaries of the nominee for the 2016 to 2017 financial years.

    m.An undated employment contract of the nominee prepared by Shimizu Kokusai Law Office.

    n.Notification of the applicant’s approval as a standard business sponsor for the period from 12 December 2014 to 12 December 2017.

    o.Copies of the receipts and confirmation of Training Benchmark A contributions dated 3 October 2014 and 16 May 2016 provided to the Department.

    p.An updated organisational chart.

    q.A statutory declaration of Mr Shimizu declared on 29 June 2022.

    r.An updated ASIC record of business name registration of Conveyancing Home QLD.

    s.ASIC record of business name registrations of Phoenix Law and Associates and Injury and Accident Lawyers.

    t.An acknowledgement of application from the Department dated 15 October 2014.

    u.Notification of the grant of the nominee’s 457 visa dated 20 April 2015.

    v.A financial report of Referlegal for the 2021 financial year.

    w.Submissions from the representative dated 6 July 2022 and 27 July 2022.

    x.A copy of the decision in JP Restaurants and Catering Pty Ltd (Migration) [2021] AATA 4694 (25 October 2021).

    Evidence presented prior to and at the hearing regarding the applicant’s operations

16. Mr Shimizu provided comprehensive statutory declarations to the Tribunal prior to the hearing and gave evidence at the hearing regarding the applicant’s operations. He stated that the applicant had acquired a business which traded under the name ALC Visa Consultant and that it had thereafter operated various businesses including immigration consultancy. The applicant originally operated from premises in Surfers Paradise and relocated to Brisbane in 2018. As a result of changes to migration legislation which came into force in March 2021, the applicant was no longer able to operate as an independent migration consultancy business and transferred that business to a legal practice conducted by the company Referlegal which is jointly owned by the applicant and Mr Shimizu. The company now provides an administration and consultancy service to Referlegal.

17. The applicant sponsored the nominee as a subclass 457 visa applicant in 2014. The applicant employed the nominee on a full-time basis from about July 2015. There was a significant decline in migration work following the closure of international borders early in 2020 as a result of the COVID 19 pandemic. The applicant was forced to stand the nominee down from her employment in about June 2020. Mr Shimizu stated that the applicant intended to re-employ the nominee in the immediate future after the hearing.

18. The nominee gave evidence of her employment by the applicant on a full-time basis between 2015 and 2020. She described the tasks performed in the position of Marketing Specialist and her qualifications for the position.

    Evidence presented after the hearing

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

    a.A statutory declaration of Mr Shimizu declared on 9 August 2022.

    b.A copy of a General Service Agreement between the applicant and Referlegal dated 1 August 2022.

    c.An employment contract of the nominee dated 8 August 2022.

    d.An updated ANZSCO extract for the occupation of Marketing Specialist.

    e.Updated market salary research.

    f.A copy of the financial report of Referlegal for the 2021 financial year previously provided to the Tribunal.

    g.Various submissions from the applicant’s accountant dated 1 August 2022 and 8 August 2022.

    h.Further copies of the evidence of training expenditure dated 3 October 2014, 16 May 2016, 2 February 2017 and 16 February 2018 previously provided to the Department and the Tribunal.

    i.A further copy of the external training provider receipt dated 16 February 2018 previously produced to the Department and Tribunal. Activity statements for the period from April 2020 to March 2022.

    j.A submission from the representative dated 9 August 2022.

    k.Evidence of the identity and immigration status of an employee said to have been trained in February 2018.

    l.Evidence of the training undertaken in February 2018.

    The application must be compliant: reg 5.19(3)(a)

20. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a relevant person and occupation 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.

21. 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 reg 5.19(2) and consequently of reg 5.19(3)(a)(i) are met.

22. 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, Ms Yuri Ida. Department records reveal that the nominee was granted a Subclass 457 visa on 20 April 2015, which was valid until 20 April 2019. Accordingly, the nominee held the required subclass of visa on the date of the application, 26 February 2018. The Tribunal is satisfied that the requirements of reg 5.19(3)(a)(ii) are met.

23. 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 both the position and the occupation (ANZSCO) as Marketing Specialist. The Tribunal finds that ANZSCO lists the occupation, Marketing Specialist with Unit Group code 2251. The nominee’s employment contract submitted to the Department describes her position as Marketing Specialist. At the hearing, Mr Shimizu 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 has carried on the occupation of Marketing Specialist listed in ANZSCO. Accordingly, the Tribunal is satisfied that the requirements of reg 5.19(3)(a)(iii) are met.

24. 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 reg 5.19(3)(a) as a whole is directed towards requirements for the application form/process of an administrative nature, such that reg 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 reg 5.19(3)(a)(iv) and, for example, reg 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 reg 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 reg 5.19(3)(i), the Tribunal considers that this issue is more appropriately considered under reg 5.19(3)(i) later in these Reasons.

25. The Tribunal considers that reg 5.19(3)(a)(iv) is more directed to the administrative process, consistent with the requirements of reg 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 Marketing Specialist. The Tribunal is therefore satisfied that the application for approval identifies a need to employ the nominee in the position of marketing Specialist under the applicant’s direct control such that reg 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 reg 5.19(3)(i).

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

    Status of the nominator: reg 5.19(3)(b)

27. 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 – reg 5.19(3)(b)(i)

28. The Department’s records confirm the applicant was approved as a standard business sponsor from 12 December 2014 for three years and was the standard business sponsor who last identified the nominee in a nomination under s 140GB of the Act. The requirement in reg 5.19(3)(b)(i) is therefore met.

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

29. The applicant produced various documents to the Tribunal including taxation returns and financial statements to the 2021 financial year, ASIC evidence in respect of the applicant and its registered business names and activity statements to the month of March 2022. Mr Shimizu gave evidence of the business activities of the applicant. The applicant’s financial statements show that the applicant recorded gross income of $416,312 and $182,005 in the 2020 and 2021 financial years respectively.

1. 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 an administration and consultancy business. The requirement in reg 5.19(3)(b)(ii) is therefore met.

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

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

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

   Previous employment of the nominee: reg 5.19(3)(c)

4. Broadly speaking, to meet the requirement in reg 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.

5. The applicant has provided PAYG payment summaries for the nominee for the 2016 to 2018 financial years. These documents confirm her employment by the applicant from July 2015 to the date of the application. Mr Shimizu gave evidence that the nominee had been employed full-time as a Marketing Specialist throughout her employment by the applicant and gave evidence regarding the tasks performed by her during that period. As stated previously, the nominee was granted a Subclass 457 visa on 20 April 2015, which was valid for four years.

6. The Tribunal is accordingly satisfied that the nominee held a Subclass 457 visa and has been employed full-time in Australia in the position for which she held that 457 visa for at least two of the three years immediately before the nomination application on 26 February 2018. Accordingly, the requirement in reg 5.19(3)(c)(i) is met.

7. Given the above findings, the requirement in reg 5.19(3)(c) is met.

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

8. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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.

9. The nominee is a person to whom reg 5.19(3)(c)(i) applies (see paragraph 35 above) and is therefore required to meet this requirement.

10. The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the employment contract dated 8 August 2022. The contract provides that the nominee’s employment is permanent and ongoing from the grant of the appropriate visa. The contract further provides that the nominee will be employed for at least two years from the grant of her permanent residency visa with the possibility of extending the period of employment. The employment is for 38 hours per week which is equivalent to full-time employment. The Tribunal is satisfied that the contract provides for employment on a full-time basis for at least two years. Accordingly, the requirement in reg 5.19(3)(d)(ii) is met.

11. 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). Based on the information provided to the Department prior to March 2019, the delegate was not satisfied that this requirement had been met.

12. Based on the financial information available at the hearing, the Tribunal expressed to Mr Shimizu its concern that the applicant had not demonstrated the capacity to pay the nominee’s salary package for at least two years. After the hearing, the applicant provided to the Tribunal a General Service Agreement between the applicant and Referlegal effective from 1 August 2022. That agreement provides for payment to the applicant of a regular service fee which will be sufficient to enable the applicant to pay the nominee’s salary package for at least two years. The most recent financial statement of Referlegal (the 2021 financial statement) reveals that the company received trading income of $1,447,533.88 in that year plus other income of $216,487.69, a total income of $1,664,021.57. The company recorded a net profit of $18,629.38 in that year. The Tribunal is satisfied that Referlegal has the capacity to continue to pay the service fee.

13. The salary payable to the nominee under the recent employment contract is $60,000 per annum plus superannuation in accordance with the requirements of the Superannuation Guarantee Scheme. The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Marketing Specialist 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 reg 5.19(3)(d)(i) is met.

14. Given the above findings, the requirement in reg 5.19(3)(d) is met.

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

15. 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.

16. The applicant produced recent job advertisements from the platform Seek for the positions of Marketing Coordinator and Marketing Specialist in south-east Queensland. The advertised salaries were between $50,000 and $69,999 per annum with the majority of advertisements referring to a salary of $50,000 to $65,000 per annum.

17. 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.

18. Accordingly, the requirement in reg 5.19(3)(e) is met.

    Training commitments and obligations: reg 5.19(3)(f)

19. 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.

20. 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.

21. The period of the applicant’s most recent sponsorship approval is from 12 December 2014 to 12 December 2017. The applicant provided evidence that the nominee was the holder of a Subclass 457 visa from 20 April 2015 to 20 April 2019 and that the applicant was the approved sponsor of the nominee. Mr Shimizu has advised the Tribunal that the nominee was employed by the applicant from the month of July 2015. Accordingly, the applicant is required to comply with the training requirement for each year of its sponsorship approval.

    What is the relevant instrument?

22. The training benchmarks and training requirements applicable to the sponsorship period from 12 December 2014 to 30 June 2017 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.

23. The Instrument provides that expenditure that can count towards Benchmark B includes:

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

24. IMMI 13/030 was repealed from 1 July 2017 and was replaced by IMMI 17/045 which commenced on that date. The training benchmarks under that instrument are similar to those specified in IMMI 13/030 except that, for Benchmark B, the instrument provides that the expenditure must have been for the provision of training of employees of the business who are Australian citizens and Australian permanent residents. Further, the applicable expenditure for this benchmark differs in some respects from the applicable expenditure specified in the earlier instrument.

    Has the applicant complied with its training obligations?

25. There are three separate years in the period of the applicant’s most recent sponsorship approval. In the nomination application, the applicant indicated that it claimed to meet Benchmark A in the first and second sponsorship years and Benchmark B in the third sponsorship year. Mr Shimizu confirmed accordingly at the hearing.

26. In order to meet Benchmark A, the applicant is required to establish that the payment to the industry training fund is equivalent to at least 2% of the payroll of the business in the relevant period. In order to meet Benchmark B, the applicant is required to establish that the payment of expenditure in the provision of training to employees of the business 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 these requirements. This term is not defined in IMMI 13/030. In IMMI 17/045, “payroll” is defined as including wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments that the applicant has paid to their employees during the relevant period. This definition is consistent with the definition contained in the Department’s policy relevant to IMMI 13/030.

27. The applicant did not provide evidence of its payroll expenditure in the three sponsorship years ending on 12 December 2015, 12 December 2016 and 12 December 2017 respectively. The applicant did provide evidence from its accountants of the applicant’s payroll expenditure in the 2015 to 2017 calendar years. The Tribunal accepts that evidence as establishing the applicant’s payroll expenditure for the corresponding sponsorship periods ending on 12 December in each of those years.

28. The following table sets out the applicant’s payroll expenditure and the applicant’s relevant Benchmark A and Benchmark B amounts for the three sponsorship periods:

Sponsorship year	2015	2016	2017
Payroll	$210,930.85	$224,397.54	$191,241.38
Benchmark A amount (2%)	$4,218.62	$4,487.95
Benchmark B amount (1%)	$1,912.41

1. The applicant produced correspondence and receipts evidencing payment of the following expenditure intended to meet Benchmark A:

   a.$1,700 to Bond University Queensland on 3 October 2014.

   b.$2,700 to Bond University Queensland on 16 May 2016.

   c.$4,700 to Bond University Queensland on 2 February 2017.

2. The applicant produced evidence of payment of the sum of $2,337.50 to Upskill World Pty Ltd on 16 February 2018 with the reference Training 2017 – 18 which was claimed to meet Benchmark B.

3. The applicant has submitted that the payments to Bond University on 3 October 2014 and 16 May 2016 (totalling $4,400) were made in respect of the 2015 sponsorship year, that the payment of $4,700 to Bond University on 20 February 2017 was in respect of the 2016 sponsorship year and that the payment to Upskill World Pty Ltd of $2,337.52 was in respect of the 2017 sponsorship year. Although the payment on 3 October 2014 was made shortly prior to the commencement of the first sponsorship period and the three later contributions were paid retrospectively, that is after the end of the relevant sponsorship periods, the Tribunal accepts that these payments can be regarded as “recent” expenditure of the relevant benchmark amounts for the three sponsorship periods.

4. The Tribunal is satisfied that the applicant has fulfilled its training commitments and complied with its obligations relating to training during the period of its most recent business sponsorship and accordingly that the requirements of r.5.19(3)(f)(i) are met. It is therefore not necessary to consider whether it is reasonable to disregard any non-compliance under r.5.19(3)(f)(ii).

5. Accordingly, the requirement in reg 5.19(3)(f) is met.

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

6. 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 regs 1.13A and 1.13B.

7. 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.

8. Accordingly, the requirement in reg 5.19(3)(g) is met.

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

9. 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.

10. 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.

11. Accordingly, the requirement in reg 5.19(3)(h) is met.

    Genuine need to employ nominee: reg 5.19(3)(i)

12. 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.

13. The applicant initially operated immigration consultancy, education consultancy and settlement advisory service businesses. The applicant also acquired a 50% interest in the legal practice conducted by Referlegal. Following amendments to migration law in 2021, the applicant was no longer able to conduct its immigration consultancy business which was transferred to Referlegal. The applicant has continued to conduct its other businesses.

14. Mr Shimizu was asked at the hearing why the applicant needed to employee the nominee as a Marketing Specialist having regard to the transfer of its immigration consultancy business. The Tribunal also noted that the nominee had not been employed between June 2020 and the date of the hearing.

15. The applicant has provided evidence that nominee’s employment was terminated in June 2020 because of the decline in migration work as a result of border closures related to the COVID-19 pandemic. Mr Shimizu has stated that there has been an increase in needs for immigration advisory assistance since the reopening of national borders. He described the services being provided by the applicant to Referlegal and the duties to be performed by the nominee as Marketing Specialist to allow the applicant to provide those services. The nominee was employed full-time in the position from July 2015 until June 2020. She has been re-employed since 1 August 2022. Having regard to the terms of the General Service Agreement between the applicant and Referlegal and the services to be provided by the applicant pursuant to that agreement, the Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Marketing Specialist under the nominator’s direct control.

16. Accordingly, the requirement in reg 5.19(3)(i) is met.

17. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

18. 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.