L B Taxi Management Pty Ltd as Trustee for the LB Taxi Management Trust (Migration)

[2020] AATA 5469

L B Taxi Management Pty Ltd as Trustee for the LB Taxi Management Trust (Migration) [2020] AATA 5469 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LB Taxi Management Pty Ltd as Trustee for LB Taxi Management Trust

CASE NUMBER:  2007135

HOME AFFAIRS REFERENCE(S):          BCC2016/1193647

MEMBER:Susan Trotter

DATE:6 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 06 November 2020 at 5:15pm

CATCHWORDS
MIGRATION – nomination of a position – Federal Circuit Court remittal – Temporary Residence Transition Nomination stream – position of Motor Mechanic (General) – actively and lawfully operating – business de-registered – business reduced capacity from downturn – business relocated to a shared premises – business re-registered – nominee retained employment – capacity to provide two years of employment – terms and conditions of employment – training obligations – decision under review set aside

LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 2.87, 5.19; Schedule 2, cl 457.223

CASES
G v MIBP [2018] FCA 1229
Re Drake (No. 2) (1978-1980) 2 ALD 634

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 and Border Protection on 25 July 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. On 18 March 2016, the applicant applied for approval of a nomination of a position.

3. The requirements for the approval of the nomination of a position in Australia are found in r.5.19. as in force at the date of an application. Regulation 5.19 at the time of the application for the nomination contained 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).

4. The applicant applied in the Temporary Residence Transition stream, nominating the occupation of Motor Mechanic (General) (ANZSCO code 321211[1]) to be undertaken by Mr Dilsher Singh (the nominee) for its business. The nominee, a citizen of India, at the time held a Subclass 457 (Temporary Work (Skilled)) visa. The Temporary Residence Transition Stream, prior to 18 March 2018, enabled Subclass 457 visa holders who had worked for their employer for two years to apply for a permanent visa where the employer had offered them a permanent position in the same occupation.

   [1] Australian and New Zealand Classification of Occupations

5. On 18 March 2016, the nominee lodged a related Subclass 186 Employer Nomination (Permanent) (Class EN) visa application, as primary visa applicant, with the Department.

6. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(b)(ii) of the Regulations because LB Taxi Management Pty Ltd (ACN 150 669 846) as Trustee for the LB Taxi Management Trust was not actively and lawfully operating because LB Taxi Management Pty Ltd (ACN 150 669 846) had been deregistered on 28 September 2015.

7. On 14 August 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

8. On 25 October 2019, the Tribunal (differently constituted) affirmed the decision to refuse the nomination.

9. On 2 April 2020, the matter was remitted by consent orders of the Federal Circuit Court for reconsideration. Mr Luay Al-Yassiry, director of the applicant appeared before the Tribunal on 5 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.

10. The applicant was represented in relation to the review by its registered migration agent.

11. 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

12. 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) as in force as the time of the application (extracted in the attachment to this decision). For the nomination to be approved, all the requirements must be met.

13. The evidence before the Tribunal, including Mr Al-Yassiry’s oral evidence, shows that the LB Taxi Management Trust has operated a taxi and mechanical workshop business in Brisbane since 2011. The Trust has continuously maintained an Australian Business Registration since 1 May 2011. Mr Al-Yassiry’s evidence was that the business operates a taxi service and also runs a mechanical workshop which services taxis operated by the Trust and also provides mechanical services, via the workshop, for other taxis and private cars. Mr Al-Yassiry’s evidence was that in 2011 the business operated approximately 30 taxis but that the taxi business slowed down from about 2014 impacted by the competition from Uber. More recently the business has been impacted by COVID-19 and the business now operates five taxis. The business premises were relocated from the north side of Brisbane to Rocklea on the south side of Brisbane approximately twelve months ago. The nominee commenced full-time employment with the business in 2014 and is responsible for maintenance of the taxi fleet and also provides mechanical services for other taxis and Ubers, and some private cars.

14. Mr Al-Yassiry told the Tribunal that the employees of the business have changed since the time of the nomination application. At that time, in addition to subcontractor drivers, the business employed two fleet managers and a sales, marketing and administration manager, Walid Popalzai, and the nominee. However, with the decrease in taxi business and licences, that has now reduced to just himself, Mr Popalzai, the nominee and subcontract drivers as required. Mr Popalzai is now the fleet manager and the nominee is the mechanic. The nominee is a full-time mechanic and has no other duties. He recently took two months leave, when the business was most impacted by COVID-19 but at all times since 2014 has worked full-time for the business as a mechanic.

15. The nominee’s evidence was that he has worked full-time for the business as a mechanic since 2014, following grant of his Subclass 457 visa. He said he looks after the taxis of the business and also carried out mechanical services for other taxis and cars. The business had more taxis when it started and it later slowed down but they have a lot of clients for other mechanical jobs. Since the business relocated from to Rocklea, they share the premises with another taxi operator and he (the nominee) also does work for their cars. He has a taxi licence but has never worked as a taxi driver. He got the job with the business after responding to an advertisement he saw on seek.com.au. He had just finished his mechanic qualifications and was looking for work. He does not understand what has happened about the business set up. He just works there and feels he has been penalised. From his point of view, he has been working for the same employer the whole time.

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

16. 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.

17. Regulation 5.19(3)(a)(i) together with r.5.19(2), requires that the application for approval was in the approved form, was accompanied by the prescribed fee and that it was accompany by s.245AR certification.

18. Having regard to documentation in the file of the Department, the Tribunal is satisfied that the application was made in the approved form, that is form 1395 (Internet) as regards this application. Further, the Tribunal is satisfied that the application was accompanied by the prescribed fee of $540. The Tribunal is also satisfied that the written certification dated 25 October 2016 was provided, stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

19. Regulation 5.19(3)(a)(i) is therefore met.

20. Regulation 5.19(3)(a)(ii) requires that the application for approval must identify a person who holds a Subclass 457 visa on the basis that they met cl.457.223(4) of Schedule 2 to the Regulations (which is a primary criterion for applicants in the standard business sponsor stream).

21. The application identified Mr Dilsher Singh as the relevant person or ‘nominee’. According to Department records, the nominee was granted a Subclass 457 visa on 20 November 2013, which was valid until 20 November 2017 having met cl.457.223(4).

22. Regulation r.5.19(3)(a)(ii) is therefore met because the nominee held a Subclass 457 visa at the time he was identified as the relevant person for the nomination application made on 18 March 2016.

23. Regulation 5.19(3)(a)(iii) requires that the application for approval identify an occupation, in relation to the position, that is both listed in ANZSCO and which has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 visa identified in the application.

24. The applicant nominated the position of Motor Mechanic in the application for approval of the nomination and referred to the ANZSCO occupation of Motor Mechanic (General). The Tribunal finds ANZSCO lists the occupation of Motor Mechanic (General) ANZSCO code 321211.

25. Taking into account the nature of the business, and the evidence of the nominee’s duties and responsibilities, the Tribunal is satisfied that the duties undertaken by the nominee fall within the occupation of Motor Mechanic.

26. Further, the Tribunal is satisfied that the identified occupation is listed in ANZSCO and has the same 4 digit occupation unit group code as the occupation carried out by the nominee in relation to the Subclass 457 visa.

27. Regulation 5.19(3)(a)(iii) is therefore met.

28. Given the above findings that subparagraphs (i), (ii) and (iii) are met, the requirements in r.5.19(3)(a) overall are therefore met.

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

29. 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.

30. The Department’s records indicate that the most recent sponsorship approval period for the applicant was from 31 July 2013 up to 30 July 2015.[2] The Tribunal is satisfied that the applicant was the standard business sponsor who last identified the nominee and nominated him for a Subclass 457 visa. There was no evidence that the approval was made on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i)

    [2] The Tribunal notes that the original period of the applicant’s most recent standard business sponsorship approval was from 31 July 2013 for three years or until such a time that the number of nominations approved under the sponsorship reached two. Department records as at 2 November 2020 show that the sponsorship approval period was for a two year period from 31 July 2013.

31. A chronology of relevant events as regards the operation of the business by the LB Taxi Management Trust, and the Trustee of the Trust, based upon documentary and oral evidence before the Tribunal, includes as follows:

Date

Event/Document

1 May 2011

The Trustee for LB Taxi Management Trust

Active ABN from 1 May 2011

ABN 24 922 179 867

2 May 2011

LB Taxi Management Pty Ltd ACN 150 669 846 registered

5 May 2011

Trust Deed for the LB Taxi Management Trust appointing LB Taxi Management Pty Ltd ACN 150 669 846 as Trustee

23 May 2013

Sponsorship Application by the LB Taxi Management Trust (ACN 150669846, ABN 24922179867)

31 July 2013

Standard Sponsorship Agreement Approval for The Trustee for LB Taxi Management Trust, ACN 150669846, ABN 24922179867

13 November 2013

Nomination Approval to The Trustee for LB Taxi Management Trust to employ Mr Singh for Subclass 457 visa

13 November 2013

Mr Singh granted 457 visa

17 September 2015

Deed of Retirement of LB Taxi Management Pty Ltd ACN 150 669 846 as Trustee of the LB Taxi Management Trust and Appointment of Luay Al-Yassiry as Trustee

28 September 2015

LB Taxi Management Pty Ltd ACN 150 669 846 deregistered

16 October 2015

LB Taxi Management Pty Ltd 608 800 059 registered

16 October 2015

Deed of Retirement of Luay Al-Yassiry as Trustee of the LB Taxi Management Trust and Appointment of LB Taxi Management Pty Ltd ACN 608 800 259 as Trustee

16 October 2015

Deed of Retirement of LB Taxi Management Pty Ltd ACN 150 669 846 as Trustee of the LB Taxi Management Trust and Appointment of LB Taxi Management Pty Ltd ACN 608 800 259 as Trustee

18 March 2016

Application for Employer Nomination for a Permanent Visa by the LB Taxi Management Trust, ABN: 24922179867, ACN 150 669 846

15 November 2019

Reinstatement of registration of LB Taxi Management Australia Pty Ltd ACN 150 669 846

18 November 2019

Deed of Amendment of The LB Taxi Management Trust amending the Trustee to LB Taxi Management Pty Ltd ACN 150 669 846 with the amendment applying retrospectively

28 November 2019

Deed of Amendment of The LB Taxi Management Trust retrospectively allowing the appointment of new or additional trustees to include the appointor

1. Having had the benefit of considering all of the material now in evidence, the Tribunal is satisfied that at all times the LB Taxi Management Trust (the Trust) has operated a taxi and mechanical business in Brisbane. Further, the Tribunal is satisfied, that at all times LB Taxi Management Pty Ltd ACN 150 669 846 has been the trustee of that business. LB Taxi Management Pty Ltd ACN 150 669 846 was appointed as trustee of the Trust on 5 May 2011. Whilst LB Taxi Management Pty Ltd ACN 150 669 846 was deregistered on 28 September 2015, the effect of the reregistration of the company on 28 October 2015 is that it is taken to have continued in existence as if it had not been deregistered[3]. Further, whilst various deeds have reflected the retirement and appointment of various trustees from time to time from September 2015, the Tribunal is satisfied that the effect of the reregistration of LB Taxi Management Pty Ltd ACN 150 669 846, and the 18 November 2019 Deed of Amendment of Trust retrospectively reappointing LB Taxi Management Pty Ltd ACN 150 669 846 as trustee, means that at all times LB Taxi Management Pty Ltd ACN 150 669 846 is taken to have been, and continues to be, the trustee of the LB Taxi Management Trust. The Australian Business Name registration and taxation and other documents relating to the Trust in evidence before the Tribunal demonstrate that the Trust, via the legal entity of its trustee LB Taxi Management Pty Ltd ACN 150 669 846, has therefore been actively and lawfully operating a business in Australia at all relevant times and continuing.

   [3] Subsection 601AH(5) of the Corporation Act 2001

2. Given the above, the requirement in r.5.19(3)(b) is met.

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

3. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

   (a)  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 two of the three years preceding the nomination application (r.5.19(3)(c)(i)); or

   (b)  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 two years in the three years immediately before the application (r.5.19(3)(c)(ii)).

4. The information provided regarding the nominee’s employment with the applicant includes various documents and evidence given at the hearing regarding his duties and responsibilities since commencing employment. The Tribunal is satisfied that the duties and responsibilities are consistent with the tasks listed for a Motor Mechanic (General) in ANZSCO.

5. The documentary evidence before the Tribunal, including weekly payslips and corresponding bank statements, taxation returns, financial statements and superannuation statements, support that the nominee worked for the applicant full-time, as the holder of a Subclass 457 visa, for at least a two-year period within the three years preceding the nomination application on 18 March 2016. The location of employment was in Brisbane, Queensland and thus was undertaken in Australia.

6. Given the above findings, the requirement in r.5.19(3)(c)(i) and therefore r.5.19(3)(c) overall is met.

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

7. 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 two years on terms that do not expressly preclude the possibility of an extension.

8. The financial statements and taxation documents of the applicant provided to the Department and the Tribunal show the following income and net profit figures:

Year ended 30/06/14	Year ended 30/06/15	Year ended 30/06/16	Year ended 30/06/17	Year ended 30/06/18	Year ended 30/06/19	Year ended 30/06/20
Gross Income	$2,282,839	$1,232,518	$1,853,520	$1,155,539	$1,194,727	$690,570	$218,999
Net Profit	$198,743	$134,318	$142,573	$43,275	$30,436	$31,157	$25,611

1. The evidence before the Tribunal also included a letter from the applicant’s accountants dated 4 November 2020 stating, among other things:

   I advise that we are the accountants for the above business (the business) and have acted in this capacity since May 2013. We are an accounting practice of public accountants in Australia. I hold a practising certificate of Fellow membership with the Institute of Public Accountants and I have been a registered tax agent in Australia for over twenty-seven years. I am also an ASIC agent and a self-managed superannuation fund auditor registered with ASIC.

   As the accountant for the business, we are currently preparing the financial statements and income tax return of the business for the recently completed financial year and confirm from the information at hand that:

   1.That the company is solvent, lawfully operating and on the information available, able to continue offering their nominated employee full-time employment for the future despite the negative effects of COVID-19.

   2.That the turnover for the financial year ended 30 June 2020 based on the information available was $237,995.

   3.That the total wages (including superannuation) for the financial year ended 30 June 2020 based on the information available was $88,748.

   …

   I confirm that the Trust’s financial statements are prepared in accordance with the strict requirements of the Australian Accounting Standards Board’s rules, and every effort is made to ensure that the entity’s financial statements are true and correct in every way possible.

2. Mr Al-Yassiry’s evidence at hearing was that while the business has been impacted by the competition of Uber, and now more recently by COVID-19, they have still managed to keep going and to make a profit each year as is demonstrated by the financial statements. He told the Tribunal that while the has reduced the numbers of taxis over the years, it has increased the mechanical work it does, via the nominee, for other taxis and Ubers and private cars. He said that while COVID-19 has impacted the business, and the nominee did take some annual leave earlier in the year for that reason, business is now picking up again and he is confident that they will be able to continue to operate profitably as they have done for nearly 10 years now.

1. The Tribunal has taken into account the financial documents and tax returns of the applicant, its accountant’s letter of 4 November 2020 and Mr Al-Yassiry’s oral evidence, and given this evidence and the long-standing and continuing operation of the business, is satisfied that the applicant has the capacity to provide employment to the nominee for at least two years on a full-time basis, as it has been doing for several years to date. Further, the Tribunal is satisfied, having regard to the nominee’s original employment contract dated 17 March 2016 that the nominee’s employment contract does not expressly preclude the possibility of continued employment for at least two years.

2. 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)

3. 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.

4. The evidence before the Tribunal shows that the nominee is the only Motor Mechanic employed by the applicant. The Tribunal therefore finds that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

5. The applicant’s nomination application stated that the proposed salary to be paid to the nominee was $55,000. The taxation and pay records of the applicant in evidence before the Tribunal show that this is consistent with the actual salary paid to the applicant.

6. The applicant provided copies of job advertisements for motor mechanics in Queensland, including on and showing advertised salaries for a motor mechanic between $52,000 and $55,000 per annum. The Tribunal’s own enquiries suggest the average salary for a motor mechanic in Brisbane is in the range $46,000 to $83,000 per annum[4] and is satisfied that the nominee’s current, and proposed continuing, salary of $55,000 per annum is within the indicative range for the nominated position of the nominee, with terms of conditions or employment as evidenced by his employment contract consistent with the usual terms and conditions for a full-time employee. The Tribunal consequently is satisfied and finds that the terms and conditions of employment applicable to the position are no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.

   [4] >

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

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

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

8. Regulation 2.87B as in force prior to 12 August 2018 required that a person who is a standard business sponsor of at least one primary sponsored person must comply with requirements relating to training of Australian workers, in each year the person engages a Subclass 457 visa holder.

9. As already canvassed, the applicant’s most recent sponsorship approval period ran from 31 July 2013 to 30 July 2015. Pursuant to r.2.87B, the training requirements applicable for an established business with approval as a standard business sponsor in that period are 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,

   and excluding training that is only undertaken by persons who are not Australian citizens or permanent residents.

10. Regulation.2.87B was repealed from 12 August 2018 and the obligation to meet annual training benchmark requirements has been replaced by the new requirement to pay a nomination training contribution charge as part of the nomination process. A transitional provision provides that a standard business sponsor is not required to comply with the repealed training benchmark obligations in relation to a period of 12 months ending on or after 12 August 2018.

11. As already noted, the Department’s records indicate that the most recent sponsorship approval period for the applicant was from 31 July 2013 up to 30 July 2015.

12. As no twelve month period of the applicant’s most recent sponsorship approval ended on or after 12 August 2018, the applicant must have complied with applicable obligations relating to training requirements in the following twelve month periods of its most recent sponsorship approval:

    31 July 2013 to 30 July 2014
    31 July 2014 to 30 July 2015

13. The applicant seeks to meet Training Benchmark B. The financial statements and taxation documents of the applicant provided to the Department and the Tribunal show the following subcontractor, wage and superannuation figures for the applicant for the financial years ended 30 June 2014 and 30 June 2015[5]:

    [5] As discussed with Mr Al-Yassiry at hearing, the Tribunal considers the financial figures for the years ending 30 June 2014 and 30 June 2015 most closely aligned with the 12-month sponsorship periods required to be considered commencing from 31 July 2013 and 31 July 2014 and has considered the training obligation compliance for the relevant period by reference to those financial years.

Year ended 30/06/14	Year ended 30/06/15
Wages	$134,058	$225,000
Superannuation	$9,625	$15,675
Contract drivers	$627,213	$0
Total payroll	$770,896	$240,675

1. It was submitted on behalf of the applicant that subcontractor expenses should not be included in the total payroll calculation. Mr Al-Yassiry’s evidence was that he did understand that subcontractors’ expenses should be included and that was not taken into account when arranging the training required to meet the training obligations.

2. As regards what constitutes ‘payroll’ for the purposes of calculation of the training obligation, in July 2013, Departmental policy (PAM3) stated as follows in relation to how an entity’s payroll is calculated:

   Payroll

   Payroll refers to the amount of money an employer pays in wages to their employees. Payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions (mandatory or otherwise) or eligible termination payments that are defined as wages in the Act relating to payroll tax in the relevant State/Territory.

   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.

3. For the remaining period of the most recent standard sponsorship approval, the second paragraph above was changed in PAM3 to the following:

   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 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.

4. Whilst the Tribunal may be guided by policy, it is not bound to follow it: Re Drake (No. 2) (1978-1980) 2 ALD 634. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. The Courts have also held that these guidelines are incapable of being elevated into legally necessary or relevant considerations. There is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

5. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.

6. The Tribunal considers the policy guidelines in PAM3 a relevant consideration and has had regard to them, particularly in relation to whether subcontractors’ expenses should be included in the payroll calculation of the applicant for the purposes of determining its training obligation. However, the Tribunal also had regard to other relevant matters, including most relevantly the instrument setting out the training obligations.

7. IMMI 13/030, which was in force from 1 July 2013 to 30 June 2017, and IMMI 17/074 in force since 1 June 2017 differ, including in that IMMI 17/074 provides a definition of payroll, which specifically includes payments made to contractors or subcontractors for Training Benchmark A and B purposes, whereas IMMI 13/030 does not.

8. Having regard to PAM3 as in force at the relevant times, and to the differing requirements of IMMI 13/030 and IMMI 17/074, it is clear that the amounts paid to subcontractors are to be taken as part of the payroll for post-1 July 2017 matters however it is not so clear for pre-1 July 2017 matters as relevant to the Tribunal’s consideration in relation to this matter.

9. Mr Al-Yassiry’s evidence was that he did not understand subcontractor expenses were to be included in the payroll calculation for training obligations calculations. His evidence was that the contractors were not employees of the business.

10. Given the distinction between the relevant instruments (and also PAM3) pre- and post-1 July 2017, the Tribunal has concluded that it is appropriate that the amount paid to subcontractors should not be included as part of the payroll calculation.

11. The total payroll, and associated 1% training obligation figure, for the two twelve month periods of the sponsorship period under consideration (based on the financials and taxation records for the twelve month financial years ending 30 June 2014 and 30 June 2015 which closely align with those periods) are as follows:

Twelve month periods of the standard business sponsorship approval	Total payroll for twelve month period most closely aligning with the twelve month periods of the standard business sponsorship approval	1% of that total payroll
31 July 2013 to 30 July 2014	$143,683	$1,436
31 July 2014 to 30 July 2015	$240,675	$2,406

1. Receipts evidencing training for the relevant periods are as follows:

   Between 31 July 2013 and 30 July 2014

Date	Training Provider Details	Training Description	Invoiced	Paid
11 April 2014	New England College of Technology	Training fee – Staff training (Abdul Walid Popalzai)	$1,650.00	$1,650.00

Between 31 July 2014 and 30 July 2015

Date	Training Provider Details	Training Description	Invoiced	Paid
10 April 2015	New England College of Technology	Training fee – Staff training (Abdul Walid Popalzai)	$2,320.00	$2,320.00

1. The organisational chart provided by the applicant to the Department identifies Walid Popalzai, the recipient of the specified training as “Sales & Marketing & administration”. Mr Al-Yassiry’s evidence at hearing was that Mr Popalzai continues to be employed by the applicant. Subsequent to the hearing, Mr Popalzai’s passport and pay and other records were provided to the Tribunal evidencing Mr Popalzai’s status as an Australian citizen and an employee of the applicant.

2. Based upon the evidence before it, the Tribunal is therefore satisfied that during a period of twelve months closely aligning to the first twelve months of the applicant’s most recent period of approval as a standard business sponsor, the applicant expended 1.148% of its payroll on training for an Australian citizen employee. In the second twelve month period, the applicant expended 0.964% of its payroll on training for an Australian citizen employee. The calculation in the second year is slightly under the stipulated requirement of 1%. However, given the understandable limitations of the evidence not enabling a calculation aligning exactly with the two twelve month periods in question, given for the first twelve month period the calculation is slightly over the stipulated amount and given Mr Al-Yassiry’s evidence that he understood the business was at all times complying with its training obligations, the Tribunal is satisfied that the training obligation is met as required, or alternatively that it is reasonable to disregard the minor variance such that the requirement in r.5.19(3)(f) is met.

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

3. 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.

4. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any person associated with the nominator.

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

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

6. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with the relevant workplace relations laws.

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

   Conclusion

8. 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.

   OTHER MATTERS

9. The Tribunal notes that the Department has issued a certificate issued under s.375A of the Act in relation to certain documents on the Department’s file. The Tribunal has concluded that the s.375A certificate is not valid as it is only completed in part and retains parts of a template. In any event the documents to which the invalid certificate relates have no relevance to the issues before the Tribunal and the Tribunal has not placed any weight on the specified documents in reaching its decision and it is therefore not necessary to bring the certificate or these documents to the applicant’s attention.

   DECISION

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

    Susan Trotter
    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.