Gowanbrae Foods Pty Ltd (Migration)

Gowanbrae Foods Pty Ltd (Migration) [2019] AATA 4841 (7 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gowanbrae Foods Pty Ltd
CASE NUMBER:  1713728
DIBP REFERENCE(S):  BCC2016/3067258
MEMBER:Antonio Dronjic
DATE:7 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 07 November 2019 at 10:23am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Temporary Residence Transition stream – employer’s nomination of position – financial capacity to provide employment – financial documents – training requirements – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 359(2)
Migration Regulations 1994 (Cth), rr 5.19(3)(d)(i), 5.19(3)(f)(i)
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 Immigration on 15 June 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 September 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
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)(d)(i) of the Regulations because the delegate was not satisfied on the evidence that the applicant has a financial capacity to provide a minimum of two years’ full-time employment to the nominee.
The applicant applied to the Tribunal on 27 June 2017 for review of the delegate’s decision and with the application submitted a copy of the primary decision.
On 9 August 2017, the applicant submitted:
·Submissions;
·A copy of a letter from the applicant’s accountant dated 6 July 2017, stating that the Department made a mistake in calculating the sales and salary figures for the year ended on 30 June 2016;
·A copy of the profit and loss statement for the year ended on 30 June 2016;
·A summary of business activity statements (BAS) returns evidencing payment of wages of $648,945; and
·A copy of PAYG instalments extracted from the Australian Taxation Office portal.
The matter was constituted to the Tribunal on 29 May 2019.
On 31 May 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(3) of the Regulations.
On 13 June 2019, the applicant submitted:
·Submissions;
·A copy of the most recent sponsorship approval for the nominating business dated 11 August 2016 as evidence that the sponsorship status was approved until 11 August 2021;
·ASIC company extract for the nominating business;
·Financial statements for the nominating business for the years ending on 30 June 2015, 2016, 2017 and 2018;
·A copy of a letter from Mr Zaila, principal accountant of De Kretser Charted accountants dated 11 June 2019, stating that the nominee commenced his full-time employment at the nomination business on 1 September 2013;
·Copies of the nominee’s payslips from 1 July 2015 to 10 June 2019;
·A copy of the employment agreement between the nominating business and the nominee signed on 10 June 2019;
·A job description;
·A copy of the organisational chart listing the employees and their positions in the business;
·A copy of the tax invoice from Laurent IT Training and consulting dated 1 February 2018 for $13,800;
·A copy of the training plan;
·A copy of the document headed ‘La Porchetta Caroline Springs Staff List Worksheet’;
·A copy of the document headed ‘La Porchetta Caroline Springs Staff Competency list’; and
·Copies of La Porchetta staff training assessment.
On 19 June 2019, the Tribunal wrote to the applicant advising that it had considered material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 15 October 2019.
On 10 October 2019, the Tribunal wrote to the applicant inviting it to provide:
·Company tax returns for the 2016/2017, 2017/2018 and 2018/2019 financial years;
·Company financial statements (including profit and loss) for 2018/2019; and
·Evidence of training expenditure for each year of the latest standard sponsorship approval (from 11 August 2016 to 11 September 2019).
On 14 October 2019, the applicant’s representative submitted:
·Company tax returns for the financial years 2016/2017 and 2017/2018;
·Interim financials for the 2018/2019 financial year and an explanatory letter from the company’s accountant on this matter;
·Evidence on training expenditure for the period to 30 June 2019 including:
A copy of the tax invoice from Laurent IT Training and consulting dated 1 July 2016 for $8,400;
A copy of the tax invoice from Laurent IT Training and consulting dated 1 July 2017 for $8,400;
A copy of the tax invoice from Laurent IT Training and consulting dated 1 July 2018 for $8,400;
A copy of the Training Plan;
·A copy of the updated organisational chart listing the employees and their positions.
The applicant’s representative submitted that the usual practice is to invoice the company for training at the end of each financial year and that it is highly probable that there will be similar costs for training ($8,400) for the financial year ending 30 June 2020. It was further submitted that there was an apprenticeship agreement during the period 11 August 2016 to 11 September 2019. This will be provided to the Tribunal immediately after it is available.
On the same day, the applicant’s representative submitted copies of the apprenticeship training contracts for Mr Valentino Pronesti dated 11 July 2019 and Ms Monique Pronesti dated 13 August 2019.
Mr Tony Romeo appeared on behalf of the nominating business before the Tribunal on 15 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Eric Laurent, the person engaged by the nominating business to provide training to its employees. The applicant was represented in relation to the review by its registered migration agent who attended the Tribunal hearing.
In his evidence, Mr Romeo stated that he is the sole director and shareholder of the nominating business. The business was registered in August 2007 and operates La Porchetta franchise at Caroline Springs, Victoria. The restaurant can accommodate 330 customers. He oversees the financial aspect of the business and makes final decisions as to hiring and firing of employees. He attends work every day, is nor paid wages and instead is paid directors’ fees by the business.
Mr Romeo stated that, during the past financial year, the business made a profit of approximately $400,000. The Tribunal referred Mr Romeo to draft profit and loss statements for 2018/2019 financial year provided to the Tribunal by the applicant. The Tribunal observed that there is no item ‘directors’ fees’ in this statement.
After perusing the above-mentioned document, Mr Romero stated that he is not paid directors’ fees but takes profit from the business after his accountant prepares financial documents. He stated that during the past year, the business paid some $100,000 in company tax.
He stated that he owns four other companies and is also a horse trainer. He stated that he takes whatever money he needs from the business. The Tribunal noted that the amounts of money he takes ‘whenever he wants’ should be recorded in the financial documents provided. He then stated that he takes whatever profit was left at the end of financial year.
Mr Romeo gave evidence that wages are paid to all full-time employees by direct transfer to their nominated bank account. His bookkeeper and his son, who is a restaurant manager, are in charge of payment of wages.
Mr Romeo’s former employee Harry recommended the nominee, Mr Jatinder Sandhu, for the position. The nominee commenced his full-time employment in August 2013. He was granted a Subclass 457 visa in June 2013. His annual salary is $55,000 excluding superannuation. The Tribunal noted that the business employs an assistant head chef, two cooks, one trainee cook and one apprentice cook.
Mr Romeo stated that the assistant head chef is paid the same wages and the nominee and that all other employees are paid according to the relevant industry award. The Tribunal requested additional evidence of wages paid to the assistant head chef, Mr Bikash, and another cook who is an Australian citizen or permanent resident. Mr Romeo stated that one of the cooks employed by his business is his son, John Romeo.
The Tribunal explained to Mr Romeo that one of the requirements which must be satisfied by the business is contained in r.2.19(3)(f) of the Regulations, which 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. The Tribunal further explained that these requirements may be disregarded if it is reasonable to do so.
The Tribunal noted that the latest sponsorship was approved on 11 August 2016 and is to remain valid until 18 August 2021. The Tribunal explained that in each of those years, the business is required to meet the ‘training requirements’. The Tribunal explained the meaning of ‘training benchmark A and B’ to Mr Romeo.
The Tribunal noted that the applicant provided a copy of the tax invoice from Laurent IT Training and consulting dated 1 February 2018 for $13,800. The Tribunal explained that a tax invoice is not evidence that this amount was in fact paid to Mr Laurent.
The Tribunal further noted that payment of $13,800 was not mentioned in the profit and loss statement from 2018/2019 financial year. The Tribunal referred Mr Romeo to this document according to which, under the heading ‘Staff training and welfare’ the business spent $30.00 for those purposes. Mr Romeo stated that his accountant should have included payment of $13,800 in the statement.
The Tribunal observed that profit and loss statements for 2016, 2017 and 2018 financial years do not record the amounts claimed to be spent on training of Australian citizens and permanent residents employed by the restaurant. According to the profit and loss statements provided by the applicant, in 2016 the business spent $708.00; in 2017 the amount of $450.00 and in 2018 nil on training and welfare.
The Tribunal noted that the applicant provided three more invoices related to training expenditure, namely:
·Tax invoice (no 104) from Laurent IT Training and Consulting dated 1 July 2016 for $8,400;
·Tax invoice (no 105) from Laurent IT Training and Consulting dated 1 July 2017 for $8,400; and
·Tax invoice (no 107) from Laurent IT Training and Consulting dated 1 July 2018 for $8,400.
The Tribunal noted that, as an example, the invoice no. 105 states that the training relates to the period from July 2017 to June 2018. The invoice is dated 1 July 2017. The Tribunal enquired as to whether the business pays training of its employees in advance and if so why. Mr Romeo gave evidence that he pays Mr Laurent when he receives his invoice and it is always after he has provided training and ‘done his work’. When the Tribunal pointed out that the invoice is dated 1 July 2017 for the training to be provided from July 2017 to June 2018, Mr Romeo stated that he (Mr Laurent) made a mistake.
The Tribunal noted that the invoices from 2016 and 2018 are also rendered in advance of the training to be provided. Mr Romeo reiterated that he only pays for training when it is delivered to his staff.
The Tribunal enquired as to who is keeping a record of the hours of training Mr Laurent provides to his restaurant staff. Mr Romeo stated that Mr Laurent keeps these records and nobody else checks these records. He stated that he trusts Mr Laurent and that he provides good training to his staff. He added that he has 16 cameras installed in the restaurant and can provide photos of Mr Laurent at the restaurant. The Tribunal explained that having photographs depicting Mr Laurent at the restaurant is not evidence that he provided 240 hours of training as claimed. The Tribunal explained that it requires verifiable evidence that Mr Laurent provided 240 hours of training at the nominating business as claimed on tax invoices number 104, 105 and 107.
The Tribunal again asked Mr Romeo to explain how he pays Mr Laurent. Mr Romeo stated that sometimes he pays him in cash and sometimes by cheque.
Mr Romeo stated that Mr Laurent trains many younger staff in IT as orders are taken using iPads. He also trains new employees on how to answer telephone calls and take orders from customers. When asked how often Mr Laurent comes to his restaurant to provide training, Mr Romeo stated ‘whenever needed”. When asked to elaborate on how often Mr Laurent is needed, Mr Romeo stated that Mr Laurent could be at the restaurant on a weekly basis.
The Tribunal explained that the applicant will need to provide not only a list of employees who attended such training but also evidence of their Australian citizenship or permanent residency status. The Tribunal further explained that if training was provided to a person who is a member of his family, that expenditure cannot be counted for the purposes of meeting r.5.19(3)(f).
The Tribunal noted that on the tax invoice no 105 from Laurent IT Training and Consulting from 1 February 2018, it is stated that in September, October and November 2017 Mr Laurent conducted 80 hours of training at La Porchetta restaurant in each month. In December 2017, January and February 2018 it was 120 hours in each month. The Tribunal observed that Mr Romeo’s evidence is not consistent with the evidence provided in support of the application by the applicant.
The Tribunal noted that the applicant provided two apprenticeship training contracts naming Mr Valentino Pronesti and Ms Monique Pronesti as apprentices. The Tribunal further noted that Mr Rocco Pronesti signed those contracts on behalf of the nominating business and that his name does not appear on the company’s organisational chart listing its employees and their positions as provided to the Tribunal by the applicant.
The Tribunal enquired who Mr Rocco Pronesti is and what his position at the nominating business is. Mr Romeo stated that Mr Rocco Pronesti started working for him one month ago and is going to be his new manager. The Tribunal sought clarification as to whether Mr Rocco Pronesti is or is going to be the manager of the nomination business, considering that he signed apprenticeship contracts on 13 August 2019. Mr Romeo stated that Mr Rocco Pronesti commenced his employment approximately one month ago and has no financial interest in the business. He confirmed that Mr Valentino Pronesti and Ms Monique Pronesti are Mr Rocco Pronesti’s children. The Tribunal requested an updated organisational chart.
Evidence of Mr Laurent
In his evidence, the witness stated that he operates a small business and provides IT and business consultation and training. The witness stated that he has facilitated in-house training at La Porchetta Caroline Springs since it commenced its operations some six years ago.
The Tribunal referred the witness to copies of three invoices dated 1 July 2016, 1 July 2017 and 1 July 2018, provided to the Tribunal by the nominating business. The witness confirmed that he rendered all three invoices.
The Tribunal enquired as to why he would render invoice (no 104) on 1 July 2016 for 240 hours of training from 1 July 2016 to 30 June 2017. The witness stated that it was a ‘typo’ error.
The Tribunal noted that the invoice rendered on 1 July 2017 states 240 hours of training from July 2017 to July 2018. The Tribunal again enquired as to why he rendered this invoice 12 months in advance of the training actually being provided to the nominating business and how he knew that he would provide exactly 240 hours of training from July 2017 to 30 June 2018.
The witness stated that he charges for his services in advance but does not collect money. He then changed his evidence and stated that he does collect money but over the period of time. He stated that he charged for 240 hours of training in July 2017 because it is approximately five hours per week of training that he provides to La Porchetta Caroline Springs employees.
The Tribunal referred the witness to a copy of the invoice no 105 rendered on 1 February 2018 for $13,800. The Tribunal noted that, according to this invoice, he conducted 120 hours of training in December 2017, January 2018 and February 2018. The Tribunal observed that this number does not equate to five hours of training per week as claimed in his evidence.
The witness stated that he understands that there are some discrepancies but reiterated that he worked more than these hours show. He stated that the invoice no 105 is a ‘summary’ and confirmed that he rendered the invoice.
The Tribunal enquired as to whether any other person from the nominating business records the hours of training he provides. The witness stated that nobody from the nominating business records the number of training hours he provides or checks whether he actually provides those hours as claimed in the invoices. He explained that he gives Mr Romeo ‘a ball park figure’ of approximately $150 per week and is paid in cash for his services. The witness stated that he does not give receipts to Mr Romeo as they are friends. When he needs money, Mr Romeo gives it to him as it is only $150 per week.
The Tribunal observed that it would be very difficult for Mr Romeo to prove that he paid for his services if he was never given a receipt. The witness stated that the documents he provided are not correct. The Tribunal noted that payments for training expenditure were not recorded in the profit and loss statements provided to the Tribunal by the applicant.
The Tribunal indicated to the applicant that, based on the evidence before it, the Tribunal is not satisfied that the business meets the ‘training requirements’ as set out in r.5.19(3)(f) of the Regulations. The Tribunal granted the applicant until 29 October 2019 to provide additional documentary evidence and submissions in support of the application.
On 28 October 2019, the applicant’s representative submitted the following documents:
·A copy of tax invoice no 104 from Laurent IT Training and Consulting to the applicant dated 1 July 2016 in the sum of $8,400 for 240 hours of training (TF 234);
·A copy of tax invoice no 105 from Laurent IT Training and Consulting to the applicant dated 1 July 2017 in the sum of $8,400 for 240 hours of training (TF 235);
·A copy of tax invoice no 105 from Laurent IT Training and Consulting to the applicant dated 1 February 2018 in the sum of $13,800 for 600 hours of training (TF verso 235);
·A copy of tax invoice no 107 from Laurent IT Training and Consulting to the applicant dated 1 July 2018 in the sum of $8,400 for 240 hours of training (TF verso 236);
·A copy of an explanatory letter from De Krester Chartered Accountants dated 25 October 2019 stating that invoices no 104, 105 (two of them with the same number and different amounts) and 107 were never entered into MYOB accounting records and are not shown in the financial accounts of the company. They confirmed that cash payments for those invoices were never recorded;
·A copy of ABN historical details for Lauren IT (TF 239);
·Document titled ‘Information Package on behalf of Gowanbrae Foods Pty Ltd’ (TF 238 to 229) attaching:
oCopies of applicant’s wage summaries for years ending 30 June 2017, 30 June 2018 and 30 June 2019,
oA schedule comparing applicant’s wages and training expenses,
oA copy of an undated explanation letter from De Krester Chartered Accountants confirming the authenticity of the training invoices and a copy of ABN historical details for Lauren IT,
oA Statutory Declaration of Tony Romeo (Director of Gowanbrae Foods Pty Ltd) dated 28 October 2019 declaring Laurent IT Training & Consulting delivered in-house staff training, that he paid all invoices in cash from ‘the cash flow of the company’; and
oA Statutory Declaration of Eric Jean Laurent (sole proprietor of Lauren IT) dated 28 October 2019 declaring he provided training to the applicant’s staff between 2016 – 2019, that the invoice dated 1 February 2018 was incorrectly numbered (should be invoice no 106) and that all invoices rendered to the business have been paid.
·A copy of the applicant’s 2019 organisational chart listing the employees, their positions in the business and immigration status (TF 421);
·A copy of the applicant’s 2017, 2018 and 2019 staff training matrices (TF 420 to 418);
·A copy of the applicant’s staff training worksheets for various employees (TF 417 to 398);
·Copies of various PAYG summaries for all the applicant’s employees for financial years ending 30 June 2017, 30 June 2018 and 30 June 2019 (TF 397 to 286); and
·Copies of various Tax File Number Declarations forms for all the applicant’s new employees for financial years ending 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020 (TF 285 to 241).

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) of the Regulations, which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
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.
The Tribunal is satisfied that the applicant’s most recent approval as a standard business sponsor (as in force as at the time that this nomination was made) runs between 11 August 2016 and 11 August 2021.
The training requirements applicable for an established business with approval as a standard business sponsor in that period were set out in the written instrument IMMI 13/030 as follows:
·A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
·B) recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The applicant submitted four tax invoices from Laurent IT Training and Consulting as evidence of training expenditure.
·Invoice no 105 dated 1 February 2018 for $13,800, stating that Mr Laurent provided:
a)80 hours of training in September 2017;
b)80 hours of training in October 2017;
c)80 hours of training in November 2017;
d)120 hours of training in December 2017;
e)120 hours of training in January 2018; and
f)120 hours of training in February 2018.
·Invoice no 104 dated 1 July 2016 for $8,400, stating that Mr Laurent provided 240 hours of training between July 2016 and June 2017;
·Invoice no 105 dated 1 July 2017 for $8,400, stating that Mr Laurent provided 240 hours of training between July 2017 and June 2018; and
·Invoice no 107 dated 1 July 2018 for $8,400, stating that Mr Laurent provided 240 hours of training between July 2018 and June 2019.
In his evidence, Mr Romeo, on behalf of the nominating business, gave evidence that he paid the above listed invoices in cash from the cash flow of the company’. He never received any receipts from Mr Laurent that the payments were received. The financial records of the nominating business do not evidence that any of the above invoices were paid. In fact, the accountants acting for the business provided a letter dated 25 October 2019 stating that those invoices and payments were never entered into MYOB accounting records and are not shown in the financial accounts of the company. Nor were the cash payments for those invoices recorded.
The invoices were rendered in advance of the training services provided. The Tribunal does not accept the explanation provided by Mr Laurent that it was a typing error. None of the invoices reflect the actual number of hours of training provided. Mr Laurent in his evidence stated that this was an estimate only as he claims to have provided approximately five hours per week of training to La Porchetta Caroline Springs employees.
Both Mr Romeo and Mr Laurent stated in their evidence that nobody from the nominating business recorded the number of training hours Mr Laurent claims to have provided. No one at the nominating business confirmed whether Mr Laurent actually provided the number of training hours as claimed in the invoices.
Mr Laurent claims that he provided approximately five hours per week of training to La Porchetta Caroline Springs employees. However, according to the invoice no 105 rendered on 1 February 2018 for $13,800, Mr Laurent claimed to have conducted 120 hours of training in December 2017, 120 hours of training in January 2018 and 120 hours of training in February 2018. The Tribunal finds that 120 hours of training in each of those three months do not equate to five hours of training per week as claimed in his evidence.
Based on the evidence before it, the Tribunal is not satisfied that the nominating business meets the requirements of r.5.19(3)(f)(i) and is not satisfied that it is reasonable to disregard this requirement. Accordingly, the applicant does not meet the requirement in r.5.19(3)(f).
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 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.
Antonio Dronjic
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.

[2019] AATA 4841

7 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice