Harry Concepts Pty Ltd (Migration)

[2020] AATA 2910

Harry Concepts Pty Ltd (Migration) [2020] AATA 2910 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Harry Concepts Pty Ltd

CASE NUMBER:  1904275

DIBP REFERENCE(S):  BCC2017/4877646

MEMBER:Antonio Dronjic

DATE:27 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2020 at 8:58am

CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream –standard business sponsor – actively and lawfully operating a business in Australia –financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment –financial evidence provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 359, 376
Migration Regulations 1994, rr 1.13, 2.87,5.19

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 Immigration on 7 February 2019 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 18 December 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 (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.

3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(g) of the Regulations. The delegate based his or her findings on the Fair Work Ombudsman’s (FWO) on-site visit verification conducted on 28 July 2016. The officer of FWO found that the nominee, Ms Varshaben Devangkumar Patel was not working in her nominated occupation and that her work involved calling customers and attempting to convince them to install solar panels from the business.

4. On 25 February 2019, the applicant applied to the Tribunal for a review of the delegate’s decision and with the review application submitted a copy of the primary decision.

5. On 21 January 2020, 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.

6. On 18 February 2020, the applicant submitted the following documents:

   ·Evidence of market salary for Customer Service Manager in Melbourne;

   ·A copy of a report from the Department released under the Freedom of Information Act;

   ·Bundle of customer feedback forms;

   ·A copy of the tax invoice from Atia Transport Logistics for renewal of commercial motor vehicle insurance dated 29 January 2020;

   ·A copy of the solar panel sales summary from September 2019 to February 2020;

   ·A copy of a feedback and support form;

   ·A copy of a submission provided to the Department on 18 February 2020;

   ·A copy of the ASIC Current & Historical Company Extract for ‘Harry Concepts Pty Ltd’;

   ·Business Activity Statement (BAS) for the period from July 2015 to November 2019;

   ·Financial statements for the nominating business for the years ending 30 June 2017 and 30 June 2018;

   ·Draft financial statements for the nominating business for the year ending 30 June 2019;

   ·Profit and loss statement for Harry Concepts Pty Ltd for the period from 1 July 2019 to 31 December 2019;

   ·A copy of the letter from Ms Christine Moh-Bridgland (migration agent) stating that the net profit for the financial year ending on 30 June 2019 was $71,832 and submitting that the nominating business account with the REC Registry is showing the company currently has 5090 STC certificates x $40.00 per certificate - which is worth $203,600;

   ·A copy of the applicant’s organisational chart;

   ·A copy of a position description for Customer Service Manager;

   ·A copy of the sponsorship approval letter from the Department dated 18 May 2016;

   ·A copy of the nomination approval letter from the Department dated 3 April 2014;

   ·A copy of the subclass 457 visa approval letter from the Department dated 1 October 2014;

   ·A copy of the tax invoice for $500,00 dated 9 May 2016 from Luma Developments Pty Ltd issued to the nominating business for training provided to all employees and management (accurate record keeping);

   ·A copy of the tax invoice for $1,200,00 dated 24 December 2016 from TIDE Training issued to the nominating business for training provided to Jasbir Singh for a short course in multi-combination automatic;

   ·A copy of the tax invoice for $1,090 dated 24 April 2019 from Barkly Driving School for Mr Ashishkumar V Patel’s licence to drive a heavy rigid vehicle; and

   ·A copy of the tax invoice for $770.00 dated 17 July 2018 from Sam Electricals Pty Ltd to Evergreen Solar Power for a training lecture on switchboards (not stating who attended this training).

7. On 19 February 2020, the applicant submitted the following documents:

   ·Copy of Commonwealth Bank (Business Transaction Account) statement as evidence of salary transfers to the nominee’s nominated bank account;

   ·Statement from the nominee’s superannuation account as evidence of payment of superannuation contribution by the nominating business;

   ·A copy of the employment agreement between the nominating business and the nominee signed on 17 February 2020, stating the nominee’s salary to be $65,000 per annum;

   ·A copy of the PAYG payment summaries for the nominee for the years ending 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018 and 30 June 2019; and

   ·Copies of the nominee’s payslips from 24 June 2019 to 2 February 2020.

8. On 20 April 2020, the applicant submitted the following documents:

   ·Legal submission prepared by the applicant’s new representative Mr Simar Hermis;

   ·A copy of the statutory declaration of Himanshu Patel, the managing director of nominating business dated 20 April 2020;

   ·A copy of the statutory declaration of the visa applicant, Ms Varshaben Patel dated 19 April 2020;

   ·A copy of the performance report for Evergreen Solar Power for November 2018 and weekly roster from 12 to 17 November 2018;

   ·A copy of the performance report for Evergreen Solar Power for November 2019 and weekly roster from 11 to 15 November 2019;

   ·A copy of the Evergreen Solar Power QA Checklist;

   ·Various training material used by Evergreen Solar Power;

   ·A copy of a customer complaint report for November 2018;

   ·A copy of a customer complaint report for November 2019;

   ·A bundle of business documentation related to a list of contacts including Excel spreadsheet of lead resources, emails of lead details and Excel spreadsheet with daily management tasks;

   ·A copy of the FOI request for access to documents; and

   ·A copy of the Fair Work Ombudsman’s decision dated 12 June 2019.

9. On 21 April 2020 the applicant’s representative submitted updated legal submissions addressing r.5.19(3)(g) (adverse information).

10. Mr Patel, the managing director of the nominating business appeared before the Tribunal on 28 April 2020 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent.

11. At the commencement of the hearing the Tribunal noted that the Department file contains a non-disclosure certificate issued pursuant to s.376 of the Act. A copy of this certificate was sent to the applicant on 20 February 2020 with the Tribunal’s invitation for the applicant to comment on the validity of this certificate. The Tribunal explained that the certificate is purporting to protect disclosure of information contained in the Department’s ISCE records.

12. The certificate purports to protect disclosure of information that the Fair Work Ombudsman officer visited the nominating business and found the nominee does not work in her nominated occupation and that the applicant’s financial position and training requirements were not assessed by the Department. The applicant’s representative confirmed that he obtained the copy of the report through FOI legislation. In addition, a copy of the primary decision record that was submitted to the Tribunal by the applicant contains the information related to Fair Work Ombudsman report.

13. In his evidence Mr Patel stated that he is the managing director of the nominating business. He is the sole director and shareholder of Harry Concepts Pty Ltd. The business was registered with ASIC on 28 February 2008. It operates two businesses under the same ABN. The transport side of the business operates 18 trucks and retains services of various drivers who are independent contractors. The business enters into contractual agreements with truck drivers. The nominee is not involved in this side of the business.

14. The business also operates a solar panels installation business and is trading under the name of Evergreen Solar Power. This business engages independent contractors to undertake the installation of solar panels. A list of companies that undertake the solar panel installation was provided to the Department with the nomination application. Harry Concepts Pty Ltd enters into contractual agreements with those companies. Product and workmanship warranty are provided to customers by Harry Concepts Pty Ltd. The nominee works as a customer service manager at Evergreen Solar Power. Despite having the same surname, the nominee and Mr Patel and his family members are not related.

15. The business employs three full time employees including the nominee. (call centre assistant and a sales representative). It also employs two part time sales representatives. Mr Patel is not employed by the business and in the past financial year, he paid himself approximately $50,000 in director’s fees. He does not draw wages or take profit from the business.

16. The business does not have a customer service department. The nominee manages sales staff and solar panel installers. She allocates leads to sales staff who then call potential customers. She also deals with customer complaints. The full job description was provided to the Department and the Tribunal.

17. Mr Patel first met the nominee in late 2009, while she was a holder of a Student visa. She worked at the nominating business on a part-time basis as an administrative worker for a period of some 4-5 months. At that time Harry Concepts Pty Ltd did not operate the Evergreen Solar Power business. This side of the business commenced its operation in late 2010.

18. Mr Patel gave evidence that the nominee worked at Evergreen Solar Power as a part-time sales representative from July 2013 to late 2013. He stated that he realised the need to employ a full-time customer service manager in September 2014. He was satisfied with the nominee’s performance when she was working at the nominating business and always intended to offer her this position. The business went through the motion of advertising for this position as this was one of the requirements for the business nomination approval.  Mr Patel stated that six or seven applicants were interviewed at that time, but no one was found to be suitable for the job.

19. The Tribunal noted that the applicant provided submissions and supporting documents addressing the reason the delegate refused the nomination application (r.5.19(3)(g) – adverse information).

20. The Tribunal explained to Mr Patel that, in order to be approved nomination, the nominating business must meet all the requirements in r.5.19(3). The Tribunal raised two additional issues with the applicant:

    ·Whether the nominating business fulfilled commitments made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor (r.5.19(3)(i)(A); and

    ·Whether the nominating business has financial capacity to provide full-time employment to the nominee for a minimum of two years and pay her the market salary rate (r.5.19(3)(d)(i).

21. The Tribunal noted that the applicant’s most recent approval as a standard business sponsor was on 18 May 2016. The SBS approval remains in place until 18 May 2021. The nominee’s Subclass 457 visa ceased on 1 October 2018. Accordingly, the applicant is required to provide evidence of meeting the ‘training requirements’ from May 2016 to October 2018.

22. The Tribunal noted that the applicant submitted financial records for the nominating business from the 2015/2016 to 2017/2018 financial years. The Tribunal further noted that the applicant provided submissions indicating that the applicant seeks to meet training benchmark ‘B’.

23. The Tribunal observed that, in calculating the total payroll of the business, the applicant did not include payments the nominating business made to subcontractors. The Tribunal explained that payments made to contractors or sub-contractors should be included as payroll expenditure if the contractor provides some labour services in fulfilling the requirements of the contract (in other words, they have a common law relationship of employer/employee). If payments to contractors are included as payroll expenditure, any eligible training expenditure in respect of the contractors may also be counted towards meeting the benchmarks.

24. 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 Tribunal acknowledged that the applicant provided several tax invoices as evidence of training expenditure. However, those invoices do not state who attended the training, for what purposes, whether the persons who attended training are employees of the business and whether the employees are Australian citizens or permanent residents.

25. Considering that, according to financial documentation provided, the nominating business in the past accumulated significant losses, the Tribunal expressed its concerns as to whether the nominating business has financial capacity to provide full-time employment to the nominee for a minimum of two years. The Tribunal noted that Mr Patel advised that the company has not converted their STC certificates to cash, as there is no urgency to do so. He further submitted that the business has 95,090 STC certificates x $40.00 per certificate - which is worth $203,600.

26. Mr Patel explained that STC certificates (small scale technology certificates) are issued by the government in respect of the solar panel installations. The Tribunal noted that those certificates are not listed as a company asset in the financial documentation and requested an explanation from the nominating business’ accountant. 

27. The Tribunal requested a BAS statement for the January–March 2020 quarter and updated an organisational chart listing all employees, their names and position in the business as well as their citizenship status.

28. The applicant was granted additional time to provide requested documentary evidence as well as any other documents or submissions in support of the review application until 14 May 2020.

29. On 14 May 2020, the applicant’s representative provided the following documents to the Tribunal:

    ·Submissions dated 14 May 2020, addressing the training requirements;

    ·Nominee’s Statutory Declaration dated 14 May 2020;

    ·BAS for the March 2020 quarter;

    ·Updated financial statements for the company for the 2018/19 financial year;

    ·A copy of the letter from the applicant containing the explanation of STCS;

    ·A copy of the letter from the company accountant dated 14 May 2020, explaining the STC figures and access to these funds;

    ·A copy extract from Renewable energy target registry; and

    ·Documentary evidence related to training expenditure including the evidence of citizenship status of nominator’s employees.

30. 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

31. 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.

    The application must be compliant: r.5.19(3)(a)

32. 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.

33. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

34. Therefore, it finds that r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

35. 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.

36. The Department’s records indicate that the applicant was approved as a standard business sponsor between 18 May 2016 and 18 May 2021. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Ms Varshaben Devangkumar Patel, and nominated her for a Subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

37. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided from the 2016/17 to 2018/19 financial years and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia.

38. Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

39. Broadly speaking, to meet the requirement in r.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 2 of the 3 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 2 years in the 3 years immediately before the application.

40. The Tribunal has reviewed the occupations specified in IMMI 13/067 for the purposes of the second dot point above and is satisfied that the nominated occupation of Customer Service Manager is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

1. The Tribunal is satisfied on the evidence before it that:

   ·the nomination was made on 18 December 2017;

   ·the relevant 3-year period is therefore 18 December 2014 to 18 December 2017;

   ·the nominee was granted a Subclass 457 visa on 1 October 2014, which was valid until 1 October 2018; and

   ·the nominee commenced her employment at the nominating business in October 2014 and continues to work there as a full-time customer service manager to date; and

   ·She had therefore worked for the applicant in the nominated position as the holder of a Subclass 457 visa for more than 2 years in the 3-year period immediately prior to the nomination application being lodged.

2. Accordingly, given the above and PAYG summary statements for the nominee provided to the Department and the Tribunal, the Tribunal is satisfied that the requirement in r.5.19(3)(c) is met.

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

3. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.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 2 years on terms that do not expressly preclude the possibility of an extension.

4. The applicant provided the Tribunal with a copy of an updated employment agreement between the applicant and the nominee dated 17 February 2020, which states, among other things, that the employment was offered for a period of no less than two years from the date of a Subclass 186 visa grant. The annual salary was set to be $65,000 excluding the superannuation.

5. Based on the documentary evidence provided on behalf of the applicant, including the applicant’s most recent contract of employment dated 17 February 2020, her PAYG summary statements, and the applicant’s financial information for 2018/19, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years, and that the terms and conditions of her employment do not expressly exclude the possibility of extending her period of employment.

6. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(d) is met.

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

7. 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.

8. The Tribunal is satisfied that the business does not employ an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee. The Tribunal therefore needs to be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

9. The nominee’s most recent contract of employment for the nominated position is dated 17 February 2020 and provides that the nominee’s salary is $65,000 excluding the superannuation.

10. On 19 February 2020, the applicant submitted the Indeed.com website report indicating that customer service managers in Victoria earn between $64,895 and $82,462. The applicant also submitted the NEUVCO salary report indicating the average salary for customer service managers in Australia to be $57,928.

11. From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid.

12. The Tribunal is further satisfied that the contract of employment dated 17 February 2020 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

13. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

14. 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.

15. The Tribunal notes that the applicant’s most recent approval as a standard business sponsor (as in force as at the time that this nomination was made) ran between 18 May 2016 and 18 May 2021.

16. According to the Department’s Procedures Advice Manual (PAM3), an SBS holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1]

    [1]     See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

17. According to the explanatory statement relevant to the legislative instrument IMMI 13/030, an SBS holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder. Similarly, r.2.87B requires standard business sponsors (and former standard business sponsors) to contribute to the training of Australian workers in each year they engage a Subclass 457 visa holder.

18. Based on the evidence before it, the Tribunal finds that the nominee commenced her full-time employment at the nominating business in October 2014. Her Subclass 457 visa ceased on 1 October 2018. Accordingly, the applicant is required to meet the training benchmark from 18 May 2016 (being the day of approval of the most recent sponsorship) to 1 October 2018 (being the day the business no longer employed an active Subclass 457 visa holder.

19. The training requirements applicable for an established business with approval as a standard business sponsor in that period were set out in 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.

20. IMMI 13/030 provided that expenditure that can count towards Training Benchmark B includes:

    ·paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy

    ·funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy

    ·employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

    ·employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

    ·evidence of payment of external providers to deliver training for Australian employees

    ·on-the-job training that is structured with a timeframe and clearly identifies an increase in the skills at each stage, and demonstrating:

    • the learning outcomes of the employee at each stage;
    • how the progress of the employee will be monitored and assessed;
    • how the program will provide additional and enhanced skills;
    • the use of qualified trainers to develop the program and set assessments; and
    • the number of people participating and their skill/occupation.

21. However, it does not include expenditure on training that is:

    ·delivered on the job, other than on-the-job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’

    ·confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity

    ·only undertaken by persons who are not Australian citizens or permanent residents

    ·only undertaken by persons who are principals in the business or their family members

    ·only relating to a very low skill level having regard to the characteristic and size of the business.

22. From the material provided to the Department and the Tribunal, the Tribunal accepts that the applicant seeks to meet Training Benchmark B. The Tribunal has assessed the most recent information provided on this basis.

23. With his submissions of 14 May 2020, the applicant’s representative submitted additional documentary evidence relevant to the applicant’s ability to meet cl.5.19 (3)(f). It was submitted that:

    In the event that a company employs a staff member who has a clear and consistent obligation to train Australian staff, the Department has outlined in their policy material that the total or partial salary payments made to this employee for training staff can count as expenditure for the purposes of Training Benchmark B.

    The applicant submits that the role of the nominee, Ms Patel would fall perfectly within this requirement. The applicant has already provided a significant amount of evidence to support the fact that a main role of the nominee’s role is to conduct structured on the job training to the sales/customer service staff.

    We have provided the following documents which support the fact that the nominee would perform a minimum of six hours a week of structured face to face training to her team:

    ·Weekly Roster for the Nominee – this document clearly sets out the nominee spends three hours a week on Tuesday and a further three hours a week on Thursdays undertaking scheduled and structured face to face training with her team;

    ·The Nominee’s statutory declaration – this document also confirms this on-going structured training;

    ·The Nominee’s employment contract and job description;

    ·Weekly Rosters for Sales Staff – we provided weekly rosters from 2018 and 2019 clearly indicated scheduled face to face training with the Nominee;

    ·Performance Reports – which made reference to structured training feedback;

    ·A sample of training material and training modules that the Nominee relies on to perform her training

    Calculating the Salary Component for On-The-Job Training

    The Nominee earns a salary of $55,000 per annum plus superannuation. While the applicant maintains that providing structured on-the-job and face to face training is a key role of the Nominee’s position and consumes approximately 30% to 40% of her weekly hours, we will rely on the very minimum figures of 6 hours per week.

    6 Hours of a 38 Hour Working Week = 15% of time spent performing structured on the job training.

    15% of $55,000 is $8,250 per year

    The Nominee has always had at least three Australian sales staff reporting directly to her and undertaking the minimum 2 hours (each) per week of structured training through the required periods of full financial years.

24. The representative provided the following calculation:

    1 July 2016 to 30 June 2017 – Full Financial Year

    Total Wages and Superannuation                   $231,830

    Total Contractor Payments   $375,332

    Total payroll:   $601,162

    Training Expenditure:

    Tide Training – 24 December 2016 - $1,200

    Tide Training – 17 May 2017 - $1,250

    Luma Developments – 19 May 2017 - $800

    Salary Component paid for Structured On-The-Job and Face-to-Face Training - $8,250

    Total - $11,500

    1% of Total Payroll ($601,162) = $6,011.62

    1 July 2017 to 30 June 2018 – Full Financial Year

    Total Wages and Superannuation $163,123

    Total Contractor Payments $473,230

    Total payroll: $636,353

    Training Expenditure:

    Tide Training – 26 September 2017 - $750

    Tide Training – 27 February 2018 - $1,500

    Salary Component paid for Structured On-The-Job and Face-to-Face Training - $11,000

    Total - $13,250

    1% of Total Payroll ($636,353) = $6,363.53

    1 July 2018 to 30 September 2018 – First Quarter of Financial Year

    Total Wages and Superannuation $31,119

    Total Contractor Payments $94,590.75

    Total: $125,703.75

    Training Expenditure:

    Barkly Driving School – 24 April 2018 - $1,090

    Salary Component paid for Structured On-The-Job and Face-to-Face Training - $1,375

    Total - $2,465

    1% of Total Payroll ($125,703.75) = $1,257.03

25. The Tribunal is satisfied that the above payments are acceptable for the purposes of Training Benchmark B.

26. Based on the evidence before it, the Tribunal is satisfied that the applicant complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the period of the most recent sponsorship approval and has fulfilled commitments made relating to meeting the training requirements.

27. Accordingly, the requirement in r.5.19(3)(f) is met.

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

28. 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 rr.1.13A and 1.13B. 

29. ‘Adverse information’ includes any adverse information relevant to a person’s suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority, for a possible contravention of the law, including immigration law, industrial relations and occupational health and safety – r.1.13A(1)(a), (b), and (f) and r.1.13A(2)(b), (c) and (d).  The definition also specifies that the ‘conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years’ – see r.1.13A(3).  The PAM3) indicates that ‘within the last 3 years’ should be interpreted to mean ‘3 years from the date that the relevant information is being considered’, which the Tribunal considers means the 3 year period prior to its consideration (in this case, the period 3 years before late May 2020, being late May 2017 to late May 2020).

30. According to the primary decision record, the adverse information known to the Department was arising out of FWO’s on-site visit verification conducted on 28 July 2016. The officer of FWO found that the nominee, Ms Patel is not working in her nominated occupation and that her work involved calling customers and attempting to convince them to install  solar panels from the business.

31. Relevantly, it was stated in the report:

    “Site visit 28/7/2016 - The business owner operated both a transport business and solar energy business. Employee works in the Solar business, assisting customer complaints about solar installations the business coordinates.*It is unusual to see a 457 considered skilled in this industry considering the business relies on leads provided to it to call customers and attempt to convince into an installation by the business. The visa holders are not required to hold any qualifications and handles one to two calls per day. While the employee is in the role and received the Nom Sal, the reasons for 457 are questionable.”

32. In her submissions of 18 February 2020, the applicant’s representative requested that the Tribunal disregard the adverse information for the following reasons:

    At the end of July 2016, a Fair Work Inspector conducted the site visit at the office of Harry Concepts Pty Ltd. The inspector was also part of the National 457 Monitoring Overseas Workers Team which the Gillard Government, in March 2013, had given powers to the FWO to monitor and enforce compliance with 457 visa conditions, to ensure workers are employed in the right jobs and are receiving market salary rates.

    The letter from the FWO was so inaccurate and contradicted the report which was submitted to the Department; and

    The report which FWO submitted to the Department reflected his lack of understanding of the application criteria for the 457 visa. The applicants for a Subclass 457 visa are required to hold formal qualifications or have at least 3 – 5 years of full-time work experiences for the visa to be granted. The officer of FWO was not aware of the operations of the business and most importantly, he did not request a copy of the position descriptions and the resumes of a Subclass 457 visa employees. All the officer of FWO requested were copy of the employment contract and payslips which was understandable as he was more of a Fair Work Inspector than a Subclass 457 visa monitoring officer. His report to the immigration department was not based on any relevant part of the regulations but based on his own opinions.

33. There is no evidence before the Tribunal that a further action was taken by the Department in respect of the above report. It appears that no sanctions or fines were imposed on the applicant.

34. The Tribunal has had regard to the adverse information and considers that, in this case, it is reasonable to disregard it.  In reaching that conclusion, the Tribunal gives weight to the following factors:

    ·     the breach occurred almost four years ago, and involved a report from a Fair Work Inspector;

    ·     no further action was taken by the Department in respect of the above report;

    ·     the applicant had not been the subject of any sanctions, warnings or penalties by or from the Department since that incident, which was now nearly four years ago.

35. The Tribunal is satisfied that at the time of its consideration of this issue in late May 2020, it is reasonable to disregard this adverse information in relation to the applicant.

36. Accordingly, the requirement in r.5.19(3)(g) is met.

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

37. 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.

38. On 21 January 2020, the Tribunal wrote to FWO office enquiring if 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. This request was made under s.359 of the Act.

39. On 22 January 2020, the FWO informed the Tribunal (Tribunal folio 82) that the FWO conducted searches for the past 5 years as to:

    ·Whether there is an ongoing investigation;

    ·Any moneys recovered;

    ·Whether a letter of caution/infringement notice was issued; and

    ·Whether an Enforcement tool was implemented.

40. The FWO advised the Tribunal that no documents were located within the scope of the Tribunal’s request. There is nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial relations.

41. Accordingly, the requirement in r.5.19(3)(h) is met.

    Genuine need to employ nominee: r.5.19(3)(i)

42. 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.

43. Based on the evidence before it, including the oral evidence of Mr Patel and a position description for customer service manager, the Tribunal is satisfied 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.

44. Accordingly, the requirement in r.5.19(3)(i) is met.

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

    DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision approving 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

   (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.