GREAT CURRENT AUSTRALIA PTY LTD (Migration)

[2021] AATA 414

GREAT CURRENT AUSTRALIA PTY LTD (Migration) [2021] AATA 414 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GREAT CURRENT AUSTRALIA PTY LTD

CASE NUMBER:  1800149

HOME AFFAIRS REFERENCE(S):          BCC2017/2174108

MEMBER:Stavros Georgiadis

DATE:18 February 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 18 February 2021 at 4:20pm

CATCHWORDS
MIGRATION – Employer Nomination – sponsorship approval – Temporary Residence Transition nomination – training commitments and obligations – payroll expenditure – training expenditure – application of IMMI 17/045 and IMMI 18/017 – decision under review affirmed

LEGISLATION
Migration Amendments (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994 (Cth), rr 2.59, 2.87B, 5.19

CASES
Ozzy Fortune Group Pty Ltd (Migration) [2019] AATA 735

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 21 December 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 20 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination 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.

3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i)(B) of the Regulations because the applicant did not meet Training Benchmark A contributions for each year of SBS approval.

4. The applicant’s sole Director, Mr Trung Ngo, appeared before the Tribunal on 21 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for a Subclass 186 visa, Ms Lanling Chen, in the related AAT casefile 1802417 refusing the visa. The related matters were heard together. The Tribunal hearing was conducted with the assistance of interpreters in the Vietnamese, Mandarin and and English languages.

5. 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 applicants. 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 The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

8. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.

9. The applicant’s most recent sponsorship approval as a Standard Business Sponsor (SBS) as at the date of application was from 27 February 2015 valid for three years to 27 February 2018. A further SBS sponsorship has been approved from 21 November 2018. The applicant was asked at the hearing about evidence to demonstrate that it had fulfilled the training commitment requirements during the material SBS approval period.

10. The Tribunal carefully questioned the applicant regarding the amount of any payments made to satisfy this requirement and also the timing of such payments. The following information was provided concerning the applicant’s total payroll for the period covering the SBS agreement approved from 27 February 2015. This information is consistent with the financial reports prepared by the applicant’s external Chartered Accountants, Atax & Accounting Solutions. These financial statements show wages as follows confirmed in the applicant’s oral evidence at the hearing:

    a) from 27/2/15 to 27/2/16 total payroll was $200,327;

    b) from 27/2/16 to 27/2/17 total payroll was $325,528; and

    c) from 27/2/17 to 27/2/18 total payroll was $358,574 (previously estimated at $350,000          before the 2018 financial reports were completed).

11. The applicant’s written submissions of 13 July 2020 and evidence is that the following represent the applicant’s obligations and payments that relate to the training benchmarks for the relevant SBS period:

12. The Tribunal finds from the applicant’s oral evidence and the receipts for training expenditure provided, that the following payments have been made:

    • 12/2/15 - TAFE NSW - Sydney Institute- Visa Benchmark A contribution $2,120
    • 29/6/16 - TAFE NSW - Sydney Institute- Visa Benchmark A contribution $2,500
    • 15/6/17 - TAFE NSW - Sydney Institute - Visa Benchmark A contribution $4,500
    • 30/6/17 - Visa Benchmark A contribution $4,500
    • 14/3/18 - Visa Benchmark A contribution $2,000.

13. The applicant submits that all the nominator has to provide, is evidence of training expenditure paid for each 12-month period of the sponsorship approval -  not necessarily paid during that period. For the purpose of assessing the nomination criteria, the Tribunal considers the applicant must demonstrate having fulfilled the training benchmark for the periods of 27 February 2015 to 26 February 2016, 27 February 2016 to 26 February 2017 and 27 February 2017 to 26 February 2018, for each year of their standard business sponsorship at the time of application in which they were approved to sponsor the UC-457 visa holder (emphasis added).

14. The Tribunal has taken into consideration the applicant’s further written submissions of 5 February 2021 adding to their email letter of 25 August 2020 in relation to training benchmark obligations, referring to Migration and Refugee Division Commentary - Business Visa as current at 19 September 2019. The submission is that where the most recent standard business sponsorship is approved on or after 18 March 2018, there would not have been any training obligations nor commitments made for the purpose of satisfying the sponsorship approval criteria. The submission is that this is because, for applications for approval of standard business sponsorship which were undetermined as at 18 March 2018 or made after that date, the criteria in r.2.59(d) and (e) (which required businesses operating in Australia to either meet the training benchmarks for training Australia citizens and permanent residents as specified by a legislative instrument if the business had traded in Australia for 12 months or more, or have an auditable plan for meeting those benchmarks if the business traded for less than 12 months) no longer applied. 

15. The written submissions of 25 August 2020 set out that legislative instrument IMMI 17/045 does not apply to the current nomination application as the first standard business approval was made on 25 February 2015. The submission is that the nomination application is to be assessed against 2.87B(2) and Schedule A instrument IMMI 13/030. That instrument makes reference to "recent expenditure" by the business which is not defined in Schedule A of the instrument. It is noted that IMMI 13/030 was made for the purpose of regulation 2.87B(2) and 2.87B(3): obligation to provide training per 5.19(3)(f)(i)(B).

16. The applicant further submits that Instrument IMMI 18/017 was repealed on 12 August 2018, and that by 7602 Schedule 13, operation of Migration Amendments (Skilling Australians Fund) Regulations 2018: 7602 (5): A person is not required to comply with subregulation 2.87B(2) or (3) in relation to a period of 12 months ending on or after the commencement day.  The submission is therefore, that the nominator was not required to fulfil training obligations under 2.87B(2) or 2.87B(3) for a period of 12 months ending on 12 August 2018, meaning, according to the applicant, the nominator's obligation to provide training ended on 12 August 2017, and that the ‘recent expenditure’ definition in the instrument IMMI 18/017 does not apply to the current application for nomination.   

17. The applicant submits that the last sponsorship for the applicant was approved on 21 November 2018, and that on the basis of the above submissions, it is open to the Tribunal to accept that the training requirement has been met given that the sponsorship obligation to provide training no longer applied. However, the Tribunal prefers and adopts the interpretation of ‘last sponsorship for the Company was approved’ to be with reference to the date of lodgement of the nomination application, not the time of decision. The Tribunal notes the AAT decision in Ozzy Fortune Group Pty Ltd (Migration) [2019] AATA 735 (10 April 2019) but the Tribunal, as constituted, is not bound to follow the decision of another Member. In that decision, the Tribunal found that the applicant’s most recent standard business sponsorship approved of 6 September 2018 did not include any training commitment to be fulfilled for the purposes of satisfying r.5.19(3)(f) and given that the sponsorship obligation to provide training no longer applied, the training requirement was considered to have been met (at [32]).

18. In the present case, the applicant applied for approval of the nomination on 20 June 2017 and the Tribunal, finds the last SBS sponsorship period commenced on 27 February 2015 and lasted for a period of three years.

19. The Tribunal finds that the receipt for the Training Benchmark A contribution made on 12 February 2015 predates the SBS sponsorship period commencing on 27 February 2015.  The Tribunal also finds the receipt of the payment made on 14 March 2018 falls outside of the sponsorship period ending 27 February 2018. As these payments are outside the SBS period relating to the discrete year of the sponsorship period commencing 27 February of each year, as at the date of lodgement of the nomination (on 20 June 2017) these payments therefore, cannot be used to demonstrate that the applicant has meet either Training Benchmark A, B, or a combination of both for the period.

20. As aforementioned, the applicant has made a number of written submissions up to and including 5 February 2021. In its submissions, the applicant proposes that, in any case, it had met the training obligation in aggregate, based on actual expenditure and that it had met training Benchmark B for the first year and Benchmark A for the remaining 2 years as claimed total aggregate expenditure on training was $15,500.  However, this is not borne out from the evidence discussed.  From the above payments, the aggregate is, in fact, $13,500 as the payment of $2,000 made on 14 March 2018 (and also the payment of $2,120 made on 12 February 2015) fall outside of the approved SBS sponsorship period for the three years ending 27 February 2018.

21. Having carefully considered the training benchmark payments made and the timing of the payments, the Tribunal finds that Training Benchmark obligations were not paid at all in the first year, 27 Feb 2015 to Feb 2016; underpaid in the second year ($2,500 on 29 June 2016 of $325,528 @ 2%) to Feb 2017; and paid as required in the third year to Feb 2018. However, only $13,500 was paid in aggregate over the 3 years of the last SBS approval (for the purposes of the discretion to disregard) not $15,506 required or the $15,500 claimed as having been paid, because the $2,000 paid on 14 March 2020 fell outside of the end of SBS period cycle of 27 February 2018. The Tribunal has considered the applicant’s submission that it should excise the discretion to disregard any non-meeting of the Training Benchmark obligation.

22. Observing PAM Departmental Policy Instruction 9.2.2.1, from 1 July 2013, all standard business sponsors are required to demonstrate that over the term of their sponsorship they fulfilled either Training Benchmark A or Training Benchmark B in each year of the sponsorship approval that a UC-457 visa holder was approved to be sponsored by them. Each year of the sponsorship term will begin in the anniversary of the sponsorship approval.  As the applicant made no payment in the first year, was short paid in the second year, and in aggregate was short of the $15,506 required, having paid $13,500 in the material period discussed, the Tribunal considers it is not reasonable in the particular circumstances of this case, to disregard the requirements.

23. The Tribunal concludes that when the applicant applied for the nomination approval, it did not in the applicant’s most recent sponsorship approval:

    ·fulfill the commitments made relating to meeting the training requirements during that period;

    ·comply with the applicable sponsorship obligations relating to the applicant’s training requirements during that period; and

    ·it is not reasonable to disregard the requirements.

24. Accordingly, the requirement in r.5.19(3)(f) is not met.

25. The Tribunal also considered whether the applicant’s above actions relating to not meeting Training Benchmark obligations is adverse information known relevant to a person’s suitability as an approved sponsor. ‘Adverse information’ is defined in reg 1.13A. Notably, use of the word ‘includes’ in r.1.13A(1) indicates the list in r.1.13A(1) is not exhaustive. Therefore, the information which is in some way adverse and relevant to the person’s suitability as a nominator could be considered adverse information for the purposes of r.5.19(3)(g).

26. Given the Tribunal has found that the applicant did not comply with obligations under Division 2.19 relating to training requirements during a period of last SBS approval at the time of lodging its application, it is not necessary to further consider this information within the context of r.5.19(3)(g), or whether it is reasonable to disregard adverse information under r.5.19(g)(ii)).

27. 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

28. The Tribunal affirms the decision under review to refuse the nomination.

    Stavros Georgiadis
    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.