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

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).
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.
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.
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.
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GREAT CURRENT AUSTRALIA PTY LTD (Migration)

Details

AGLC: GREAT CURRENT AUSTRALIA PTY LTD (Migration) [2021] AATA 414
Case: [2021] AATA 414
Decision Date: 18 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by Great Current Australia Pty Ltd against a decision to refuse its nomination for a Temporary Residence Transition visa stream. The dispute centred on whether the applicant had met its training commitments and obligations during the period of its most recent approval as a Standard Business Sponsor. The case was heard by Stavros Georgiadis, a member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether Great Current Australia Pty Ltd had satisfied the requirements of regulation 5.19(3)(f) of the Migration Regulations 1994. This regulation mandates that a nominator must have fulfilled any commitments made regarding training requirements and complied with applicable training obligations during the period of their most recent sponsorship approval. The Tribunal was required to assess the evidence presented regarding the company's payroll expenditure and actual training payments against the relevant sponsorship periods.

The Tribunal found that Great Current Australia Pty Ltd had not demonstrated compliance with its training obligations. While the company provided evidence of payroll figures and several payments made to TAFE NSW and for "Visa Benchmark A contributions," the Tribunal determined that these payments did not adequately cover the training benchmark requirements for each of the three relevant 12-month periods of its Standard Business Sponsorship. The company's submission that training expenditure paid at any time during the sponsorship was sufficient was rejected; the Tribunal held that the benchmark must be met for each year of sponsorship.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. It concluded that Great Current Australia Pty Ltd had not met the requirements of regulation 5.19(3), and as such, the nomination could not be approved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.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 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. 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). 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: 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. 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).

Decision

Reasons for decision

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.Stavros GeorgiadisMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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); andNote 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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Stavros GeorgiadisMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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); andNote 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.