KASHMIR TRANSPORT PTY LTD (Migration)

KASHMIR TRANSPORT PTY LTD (Migration) [2020] AATA 2484 (27 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kashmir Transport Pty Ltd
CASE NUMBER:  1719915
DIBP REFERENCE(S):  BCC2016/3711800
MEMBER:Wan Shum
DATE:27 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 March 2020 at 1:48pm
CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream – Customer Service Manager – adverse information regarding the applicant known to the Department – sanction and bar of the nominator as an approved sponsor – the bar was no longer effective– standard business sponsor– no less favourable terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19
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 10 August 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 7 November 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.
Kashmir Transport Pty Ltd (the nominator) has applied for approval of a nomination under the Temporary Residence Transition nomination stream for the position of Customer Service Manager. The person identified for the position was Mr Gurbeer Singh Brar, the nominee. The occupation had previously been approved under the temporary business sponsorship (and the associated temporary (work) Subclass 457 visa) program. The nominator is seeking to continue the employment of the nominee. He lodged a Subclass 186 visa application in respect of this nomination.
The delegate refused the application finding that the nomination did not satisfy r.5.19(3)(g) of the Regulations because there was adverse information before Immigration that the delegate considered it was not reasonable to disregard. The visa application was refused because the nomination had not been approved.
Applications for review were lodged in respect of these decisions and both parties were represented in relation to the review by the same registered migration agent.
Mr Asrif Ali appeared on behalf of the nominator before the Tribunal on 4 February 2020 to give evidence and present arguments in support of the nomination. The Tribunal also received oral evidence from the nominee.
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
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition (TRT) 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 nominator is a trucking company based in NSW, which specialises in handling cartage in steel, contained goods and segments. It was established in 2006 by Mr Ashraf Ali, who was the former CEO (recently deceased, 19 December 2019). The other directors are Firoza Bi Ali, his spouse, and his children Mr Ashif Ali and Mr Riyaz Ali. It has a truck fleet of around 28 vehicles, and until recently directly employed a number of truck drivers and mechanics, as well as an Accountant and Customer Service Manager. The nominator has sponsored seven 457 visa holders in total and had lodged employer nominations for the positions of Transport Company Manager and Customer Service Manager in April and November 2016, prior to the bar, and for the position of Accountant on 1 May 2018. All three were refused, with the Customer Service Manager and Accountant positions both being refused for the same reason of failing to satisfy r.5.19(3)(g).
Mr Ashif Ali informed the Tribunal that there are another two associated companies, Kashmir Logistics & Haulage Pty Ltd (Kashmir Logistics) and The Trustee for Kashmir Group Trust Pty Ltd (The Trustee), of which the Directors are/were Mr Ashraf Ali and Firoza Bi Ali, with Mr Ashif Ali and Mr Riyaz Ali added as directors of the former on 8 January 2020 after the death of Mr Ashraf Ali. It was explained to the Tribunal that there was a need to change the structure and operation of the nominator when they started to bid for bigger projects and sought funding for additional capital to service the projects. The financial institution they approached was of the view that the bank would be exposed to greater risk with the nominator than Kashmir Logistics due to the higher number of directors (6 compared to 2) and the possibility of disputes between the directors. The bank was prepared to lend to Kashmir Logistics but asked that they increase contracts under Kashmir Logistics. The experienced drivers under the nominator were moved across to Kashmir Logistics from January 2019, and a major client, Toll Group, was transferred to another company named Steel Tranz & Haulage Pty ltd, which is owned by the daughter of one of the directors, which involved the transfer of all the Toll drivers to that company from May 2019. Mr Ashrif Ali further explained that the nominator retains the bulk of the asses (trucks, trailers, repair garage and expertise). The customer service manager, accountant and mechanics provide services to Kashmir Logistics, which pays for these services. The Directors are paid salaries from The Trustee. The Tribunal was provided with current organisation charts for each of the related companies reflecting the information given about the restructure.
In terms of the reason for refusal, r.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. ‘Adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. ‘Adverse information’ for these purposes means any adverse information relevant to a sponsor’s suitability as an approved sponsor or a nominator and includes information about the sponsor or a person associated with the sponsor. The adverse information identified by the delegate was the sanction and bar of the nominator as an approved sponsor on 31 March 2017.
The Tribunal notes that the nominator had sought review of that decision to sanction and bar the nominator as an approved sponsor. Tribunal records show that the application for review was withdrawn on 12 December 2019. Mr Ali explained that they had originally lodged the application to clear their reputation but by the time they received correspondence from the Tribunal (differently constituted), the bar was no longer effective (having ceased on 31 March 2019) and their father was ill and in hospital. So they decided not to pursue merits review of that matter.
As mentioned above, another two TRT nomination applications were refused by the Department - one on the same date as this matter for a Transport Company Manager, and the other on 18 June 2019 for an Accountant. However, the most recent application for a TRT nomination for the position of Motor Mechanic (General), which was lodged on 5 July 2019, was approved on 10 December 2019. It is apparent from case notes that the delegate who approved that nomination did give consideration to the sanction and bar and decided it was reasonable to disregard that information.
Nonetheless, the Tribunal has considered for itself whether the bar for two years as a standard business sponsor is ‘adverse information’ for the purposes of r.5.19(3)(g) and if so, whether it is reasonable to disregard that information.
Having regard to the definition, the Tribunal considers a bar is adverse information being information relevant to a sponsor’s suitability as an approved sponsor or a nominator. In terms of whether it is reasonable to disregard, Mr Asrif Ali stated, and the Tribunal accepts, that they cooperated with the monitoring process which arose following a traffic incident and monitoring by NSW traffic authorities. It appears that there was a general (mis)understanding that Transport Company Managers were able to drive trucks for training purposes and when short-staffed. During the monitoring process, they apologised for the oversight and took measures to cease Transport Managers from undertaking such duties from 24 October 2016 by reassigning these duties to the directors and other Australian employees. The Tribunal notes that evidence was provided to the Department of the steps taken at the time. It was further added at the hearing that the original contracts which were approved by Immigration included these types of duties. The Tribunal has considered this argument but is of the view that driving trucks to fill-in for drivers who are sick, on leave or have resigned is not properly within the duties of a Transport Company Manager as described in ANZSCO.
Nonetheless, it does consider that the directors have a clearer understanding now of the significance of complying with the duties of the occupation. It notes that Kashmir Logistics was monitored and found to comply with the programme requirements on 27 April 2017. Given that the bar has also ceased, the Tribunal considers that it is reasonable to disregard the information.
Accordingly, it finds that the requirement in r.5.19(3)(g) is met.
It will now proceed to consider the remaining requirements under r.5.19(3).
The application must be compliant: r.5.19(3)(a)
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.
The material on the departmental file is that the application was made on form 1395 (Internet), on 7 November 2016 and accompanied by the fee prescribed in r.5.37. The application form included a written certification by the nominator concerning s245AR(1) of the Act under the `Paying for visa sponsorship' declaration.
Mr Gurbeer Brar was identified as the nominated person. The information before the Tribunal is that, at the time, he held a Subclass 457 visa granted on the basis of satisfying cl.457.223(4). The nominee was originally granted the Subclass 457 visa on the basis of employment with Thai Budda Pty Ltd. The application made by the nominator in respect of Mr Brar under the Temporary Business visa program for a Customer Service Manager was lodged on 28 November 2013 and approved on 1 May 2014.
The application the subject of this review identified the occupation of Customer Service Manager, ANZSCO Code 149212, in relation to the position. This position is listed in ANZSCO and the Tribunal will now consider whether it has the same 4-digit unit group code as the occupation that was approved under the Subclass 457 visa program, by comparing the position that was carried out by the nominee to the ANZSCO description.
According to ANZSCO, a Customer Service Manager “plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.”
The Tribunal notes that the current organisation chart of the nominator shows that the Customer Service Manager has no-one who directly reports to him, and there are no customer service representatives employed by the business. When this was discussed at the hearing, the parties gave evidence that the role involves managing relationships with customers and providing training on customer service to the truck drivers, now employees of a related business, in Australia. A copy of a Customer Service Plan was provided, which was said to have eben developed by Mr Brar.
According to the Customer Service Plan provided, the customer is defined as “all companies who hire our trucks and trailers to deliver their goods from Point A to Point B”, and the primary external customer is identified as “clients who receive transport services form the nominator”.
Having regard to the nature of the business and related businesses, as a trucking company that provides bulk freight services, the Tribunal accepts that the employees engaged to drive trucks, of which there are currently 31 across the group of businesses, regularly have contact with customers and their employees when picking up the goods and then delivering goods to site. The directors and the nominee had explained at the hearing that there are a number of rules that need to be met with picking up and delivering goods on site, such as where to load, how to load, and where to bring the truck in for delivery. On big projects, there could be multiple deliveries to the one site each day, with 8 to 10 truck drivers assigned for the morning run and the same number in the evening. With each driver completing multiple deliveries, there is potential for conflict with the customer’s employees, so maintaining good customer relations is critical. While the evidence given was that Mr Brar does not have staff reporting directly to him, it was claimed that he is involved in training all new drivers on customer service and handling complaints. The parties gave consistent evidence of Mr Brar’s duties in terms of developing a customer service plan, visiting clients on site, managing a complaint register and delivering training to truck drivers during induction on how to deal with their customers, which occurs regularly due to the high turnover of drivers. He also providers refresher training every quarter. Mr Brar also gave examples of complaints that he had to handle and resolve. The Tribunal requested a copy of the complaints register for a particular period and other documents which would demonstrate the type of work Mr Brar had been doing. The Tribunal was provided with a letter outlining his role and copies of the complaints register.
The Tribunal notes that due to the restructure of the business, the nominator no longer employs truck drivers directly although this did not occur until January 2019. It also notes that the Customer Service Manager position in Kashmir Logistics and The Trustee is listed as being “from Kashmir Transport” which supports the oral evidence that he is engaged across the group of companies. Furthermore, while it does not appear that he was interviewed during the investigation, there is a picture of part of a letter that was sent by him as the Customer Service Manager of the nominator in relation to work with Sydney Metro City & Southwest. This supports a finding that he was employed in the position of Customer Service Manager at the time of the investigation.
Having considered all of the oral and written evidence and taking into account the nature of the business, the Tribunal accepts that the duties that were undertaken by Mr Brar fall within the occupation of Customer Service Manager.
The Tribunal thus finds that the occupation identified in relation to the position is listed in ANZSCO and has the same 4-digit occupation unit group code as the occupation carried out by the nominee, being the occupation that was approved under the Subclass 457 visa program
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The information before the Tribunal is that the nominator was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act. While there has been a corporate restructure and movement of employees across to different related businesses, according to the payroll activity summary for the previous calendar year, the nominator employed 12 people. Based on the oral and written evidence provided as to the financial position and activities of the nominator, the Tribunal finds that the nominator is actively and lawfully operating a business in Australia.
Furthermore, the Tribunal accepts that the nominator did not meet r.1.20DA, or r.2.59(h) or r.2.68(i), in the most recent approval as a standard business sponsor, as the nominator is not an overseas standard business sponsor.
Given the above, the requirements in r.5.19(3)(b) are met.
Previous employment of the nominee: r.5.19(3)(c)
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.
The nominee was granted a Subclass 457 visa on 22 November 2012. According to the letter from Mr Ashrif Ali, the nominee did not commence employment with the nominator until August 2014. The nominee confirmed at the hearing that he had worked for the nominator since 2014, and prior to that he was employed by Bobby Bazaar and then Thai Budda Pty Ltd in the same position of Customer Service Manager. The information before the Tribunal is that he was nominated for the 457 visa by Thai Budda Pty Ltd. On the ASIC Insolvency Notice website there is an order for the winding up of this business dated June 2016.[1]
[1] in relation to ACN 154532019.
The information provided regarding the related visa holder’s employment with the nominator includes various documents and evidence given at the hearing regarding his duties and responsibilities since commencing employment. The documents before the Tribunal include a copy of the nominee’s bank statements, which reflect the regular payment of wages.
The 457 visa was granted in the position of Customer Service Manager for a total period of 4 years, which meets the requirement of being at least 2 years (not including any period of unpaid leave). Having regard to the ATO Notices of Assessment (for the 2015-2019 fiscal years) and payslips for the nominee, as well as oral evidence from both the director and the nominee, the Tribunal accepts that the employment was full time with the nominator since August 2014. The location of employment was in Sydney, NSW with travel as required to regional areas of NSW to meet clients on site, and thus was undertaken in Australia.
The Tribunal accepts that the nominee has been employed by the nominator since August 2014 and has had salary increases in that time.
Based on the information before it, the Tribunal finds that Mr Brar had been employed by the nominator in the position of ‘Customer Service Manager’ full-time, in Australia, for at least 2 of the 3 years immediately prior to the nomination application made in December 2016. This was the position for which he held the Subclass 457 visa.

Given the above findings, the requirement in r.5.19(3)(c)(i) is met.
Future employment of the visa holder: r.5.19(3)(d)
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.
The Tribunal has considered the contract of employment and the financial statements for the nominator, and related businesses, for financial years ending 30 June 2018 and 30 June 2019. According to the financial statements, the nominator had achieved a turnover of $2,894,573 (truck income plus other) for the financial year ended 30 June 2019 and $2,676,343 for financial year ended 30 June 2018, up slightly from the previous financial year. The business reported a profit before income tax of $31,720 in FYE 2019 up from $5,622 in FYE 2018.
In terms of truck income, the Director explained that all the drivers employed by the nominator were moved across to Kashmir Logistics & Haulage Pty Ltd from January 2019. Given this, it would likely affect truck income reported by the nominator. It appears that the only employees remaining under the nominator are the Accountant, Customer Service Manager, and two Motor Mechanics, all of whom are or were 457 visa holders, and two administrative assistants. The Director claims that the nominator will continue to operate as it holds the bulk of the assets such as the trucks and trailers (35 of 48 between the nominator and Kashmir Logistics & Haulage Pty Ltd), and the repair garage.
The director also provided a letter following the hearing endorsing nominee’s contribution to the company and confirmed that he had introduced major changes and improvement in their Customer Service relations since his commencement. The director stated that the nominee’s work has shown a drastic increase in customer satisfaction and that they had retained and achieved many new large customers with increased work volume through his efficient customer service efforts and commitment. In particular, the Director referred to the nominee’s ability to resolve customer queries and issues in a timely manner. In terms of existing customers, these included Toll Global Logistics, Sydney Metro Tunnelling, Melbourne Metro Tunnelling, K&S Freighters and also some upcoming projects Parramatta Metro Project and Humes (A division of Holcim Australia). However, the Tribunal notes that some of these customers are customers of Kashmir Logistics & Haulage Pty Ltd rather than the nominator, having now sighted the service agreement. It is claimed, and the Tribunal is prepared to accept based on bank transfers between the companies, that the customer service training provided by the nominee to truck drivers now employed by the other businesses in the group are nominally paid for through intercompany transfers between the related businesses and the nominator.
While it would appear to the Tribunal that the income of the nominator would reduce following the transfer of employees and customers to Kashmir Logistics & Haulage Pty Ltd, it notes that the most recent BAS for 1 July 2019 to 30 September 2019 still reflects sales of over $1m in that quarter. Having regard to all the information before it, the Tribunal accepts that the nominee will be employed on a full-time basis for at least 2 years as required. It also accepts that the terms that do not expressly preclude the possibility of an extension.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
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.
According to the organisation chart and other evidence provided there is no other person employed in the position of Customer Service Manager. In the circumstances, the Tribunal has been provided with market salary information.
This indicates that the average salary for a Customer Service Manager is $67,000 for Sydney according to PayScale, and the average salary for a Customer Service Manager is $70,733 for Australia according to Indeed, websites accessed on 10 February 2020. The most recent employment contract provided has a base salary of $70,000.
Having regard to this material the Tribunal is satisfied that the terms and conditions that apply to the position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the requirement in r.5.19(3)(e) is 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 period of the most recent sponsorship approval was 3 years from 27 May 2014. Then on 31 March 2017, the nominator was barred under Section 140M(1)(d) of the Act for two years from making future applications for approval as a standard business sponsor.
The Tribunal requested additional information regarding training expenditure and the payroll of the business for each 12 month period of the most recent SBS approval. This means that the 12 month periods would be 27 May 2014 to 26 May 2015; 27 May 2015 to 26 May 2016; 27 May 2016 to 26 May 2017.
In terms of the evidence submitted, a number of documents were provided following the hearing but these mostly relate to training expenses incurred by Kashmir Logistics and not the nominator. The Tribunal put to the nominator that it did not appear that the obligations were met on the information provided and it was submitted that it was reasonable to disregard the requirement because, while the nominator did not meet the obligation in relation for the third year of its sponsorship approval, it did not need to comply with those obligations as it was not approved for the entire 12 month period. The Tribunal notes however, that the decision made on 31 March 2017 under s.140M was to was bar the nominator from making future applications for approval as a sponsor and the sponsorship was not cancelled as submitted.
In respect of training receipts for the nominator, there are two receipts dated 25 March 2015 and 12 February 2016 for training provided by Apex Institute of Education. The former was for the amount of $9,000 for training delivered to Mohammed Irshaad, Pardeep Singh Dhillon, Sandeep Singh covering: Manage quality customer service, ensuring a safe workplace, lead and manage team effectiveness and manage organizational change. The latter was for an amount of $9,500 to Mohammed Irshaad, Pardeep Singh Dhillon, Sandeep Singh, Sukhwinder Singh, Ranjeet Singh on the following: Managing diversity in the workplace, ensuring a safe workplace and managing conflict. The Tribunal was informed that given the time that has passed, it is only possible to provide evidence of Australian citizenship for two of those employees. It was explained that the managing director at the time has since died and the current director was appointed in 2017 after the sponsorship was cancelled (sic) and they have not been able to locate identification papers for all past employees. The Tribunal was given the payroll expenses for the closest financial year periods, and advised that for July 2014 to June 2015, payroll expenses were $697,341 and for July 2015 to June 2016, payroll expenses were $896,527. The Tribunal accepts that the receipt for $9,000 and $9,500 exceeds 1% of these figures respectively.
In terms of subsequent payments, it was submitted that none were made as the company was no longer required to comply with sponsorship obligations due to the cancellation of its sponsorship. It was also submitted that management of the nominator has demonstrated their continued commitment to training Australian employees by providing training to the employees of the associated company, Kashmir Logistics and the transfer of employees to this business following the change to the structure mentioned above. Reference was made to the Directors’ oral evidence at the hearing that both the nominator and associated company have been providing ongoing training of staff to comply with industrial, transport business regulatory requirements and with employment and customer service company policies,
However, even if it were correct that the sponsorship had been cancelled, the Tribunal does not agree that the sponsorship obligations stop when the sponsorship is cancelled. This is because there is nothing in the Act or Regulations which states that the obligations of a sponsor end when the approval as a SBS is cancelled. The Tribunal notes that the sponsor continued to employ Subclass 457 visa holders and as such, considers that it was required to continue to meet its obligations in relation to these persons. This is because the terms of r.2.87B refer to ‘a period of 12 months commencing on the day the person is approved as a standard business sponsor’ or ‘a period of 12 months commencing on an anniversary of that day’ and does not expressly refer to the obligation ending for any circumstances other than the approval ceasing after 3 or 6 years depending on period of approval. Furthermore, the wording of r.2.87B(2) is that the obligation applies if, during all or part of the relevant 12-month periods, the person is a standard business sponsor of at least one primary sponsored person (emphasis added). There is nothing to indicate that the obligation ends because of a cancellation of the approval. In terms of the applicability of the obligation, the only requirement is that there is at least one primary sponsored person for the period of the SBS approval. In this case, the sponsorship was not in fact cancelled and the sponsor continued to have a primary sponsored person employed in the business. The Tribunal is of the view that the obligation to comply with training benchmarks continued for the final year of the sponsorship approval.
The Tribunal has had regard to the table provided outlining wages, subcontractor and training costs incurred by the nominator. This indicates that total wages paid for the financial years most closely aligned with the 12-month sponsorship periods was $815,630; and for subcontractors it was $1,295,151. In terms of payments for training, this totaled $18,500. There is also a payment of $14,515 for training in 2013 to 2014, however this is prior to the most recent sponsorship obligation commencing. Nil training expenditure is recorded for financial years ending 30 June 2017 and 30 June 2018.
In terms of the commitment of management being seen through relevant expenditure of the associated company, Kashmir Logistics, the table presented sets out claimed expenditure incurred in financial years ending 30 June 2016; 30 June 2017 and 30 June 2018. The submissions also included evidence of receipts for training expenses incurred by Kashmir Logistics, which includes an invoice dated 21 June 2016 issued by Australian Business Consulting & Training Pty Ltd. The invoice is for training in risk management and small business enterprise management for Pardeep Singh Dhillon, Sandeep Singh who were named in the receipts referred to above that were issued to the nominator. Given this, it is unclear whether they were employees of Kashmir Logistics or Kashmir Transport at the relevant times, or whether there was a ‘transfer’ of employees between February 2016 and June 2016. In any case, it was not submitted that this expenditure was made on behalf of the nominator, but that the management of both businesses were the same, which showed a demonstrated commitment to train Australians.
The evidence presented indicates that expenses were incurred by the nominator for training that would meet the first two years of sponsorship approval, but that there was no expenditure by the nominator for the final year of approval. It thus appears that there was a failure to meet the requirements in the final year of the sponsorship approval. The Tribunal has taken into consideration that training expenditure was incurred by Kashmir Logistics, although notes that the business was also a standard business sponsor so had its own training obligations to meet for that period. It accepts based on the invoices and receipts provided that training of Kashmir Logistics’ employees has continued to date. While the management is the same, it is a separate business so the Tribunal’s view is that the expenditure does not meet the terms of the instrument.
The Tribunal considers that there may have been some confusion as to whether the obligations still applied once the sponsor was barred. It further notes that the calculations indicate that wage and contractor payments were used to determine payroll. However, while it is clear that the amounts paid to subcontractors are to be taken as part of the payroll for post-1 July 2017 matters having regard to the terms of the applicable instrument for those matters, it is not so clear for pre-1 July 2017 matters. Given this, the Tribunal has also calculated whether the overall total expenditure on training would be 1% of the wages paid to employees only (that is, deducting the subcontractors pay of $1,295,151). The total of $18,500 exceeds 1% of $815,630 for the entire 3-year period of the most recent sponsorship approval.
The Tribunal considers that it is reasonable to disregard r.5.19(3)(f)(i) as the parties have demonstrated that they had met the obligations in each year of sponsorship approval except for the final 12 month period, and noting that the total spent over the most recent sponsorship approval period was more than 1% of the wages paid to employees. Accordingly, the requirement in r.5.19(3)(f) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
There is nothing before the Tribunal to indicate that the nominator has not had 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.
The Tribunal finds that the requirement in r.5.19(3)(h) is met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the nominator meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Wan Shum
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.

[2020] AATA 2484

27 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies