MANAN TRANSPORT PTY LTD (Migration)

[2020] AATA 4039

MANAN TRANSPORT PTY LTD (Migration) [2020] AATA 4039 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MANAN TRANSPORT PTY LTD

CASE NUMBER:  1730933

DIBP REFERENCE(S):  BCC2017/892383

MEMBER:Susan Reece Jones

DATE:24 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2020 at 9:51am

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition Nomination stream – position of Customer Service Manager – nominee employed in the position for 2 years – Training Benchmark obligations – approved standard business sponsor – diversified business – Training Benchmark A payments – terms and conditions of employment – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 245, 359
Migration Regulations 1994, r 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 21 November 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 7 March 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c) of the Regulations because the applicant had not demonstrated that the nominee had been employed in the position for a total period of at least 2 years (not including any period of unpaid leave) in the period of 3 years immediately before the nominator made the application.

4. The Tribunal received a review application on 17 December 2017. It was signed on behalf of the applicant by director, Mr Taljinder Singh, and was accompanied by a copy of the delegate’s decision.

5. On 3 January 2020, the Tribunal wrote to the applicant’s sole director via the agent, Mr Sukhjinder Sandhu of Khalsa Education and Migration Solutions, pursuant to s.359(2), to invite him to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination. The Tribunal also invited the applicant to attend a hearing on 21 February 2020.

6. On 2 March 2020, the Tribunal received an authority by which the applicant appointed a new registered migration agent, Mr Amber Gupta of Migration Consultants- Melbourne Pty Ltd, as its representative and authorised recipient for correspondence.

7. On 5 March 2020, the representative requested, and the Tribunal agreed, that the hearing be postponed until 13 March 2020 due to the representative’s commitments in relation to another case at the Tribunal.

8. On 13 March 2020 (the day of the hearing) and subsequently on 24 April and 7 May 2020, the applicant’s representative submitted additional materials including the following:

   ·     ASIC Current and Historical Details as at 28 February 2020

   ·     Business names owned by the applicant: Liberty Benalla, Truman Café, Truman Corner Store

   ·     Financial Statements 2017, 2018, 2019

   ·     Business Activity Statements for selected months in 2015 - 2019

   ·     ATO Company Tax returns: Oct 2012 to March 2013; 2015, 2016, 2017, 2018, 2019

   ·     Business plan

   ·     Policies and Procedures including menu card, publicity material and photos

   ·     Invoices with Liberty Oil and various suppliers regarding business operation

   ·     Certificate of Food registration

   ·     Lease Agreement with Liberty Oil

   ·     ANZ Bank Business Transaction Account for the applicant 2015 – 2020

   ·     Market Salary Information

   ·     Letter from Accountant: Mr Sanjeev Dhankhar of SD Accountants dated 2 March 2017

   ·     Letter from Accountant: Mr Nishaan Sewgoolam of CCP Accounting Services Pty Ltd dated 12 March 2020

   ·     Applicant business site plan

   ·     Updated Organisation Chart (as at March 2020)

   ·     Position Description - Customer Service Manager

   ·     PAYG Nominee: 2015, 2016, 2017, 2018, 2019

   ·     PAYG for all employees: 2017, 2018, 2019

   ·     Payrun Activity statements for employees 2018, 2019, 2020

   ·     Superannuation Statement - ATO Statement

   ·     Selected quarterly superannuation payments: October, December 2019

   ·     Evidence of superannuation paid to all staff for the period January to March 2020

   ·     Employment Contracts, PAYG summary and Payslips of employees specified on Organisation Chart

   ·     Workcover Certificate of Currency for the applicant dated 24 April 2020

   ·     Training Benchmark Receipts from William Angliss College for Training Benchmark payments (A/ 2%)

   ·     Training Certificates

   ·     Training Record

   ·     Payslips for staff

   ·     Employment Contract for nominee dated 17 March 2020 

   ·     ANZ Bank Statements of nominee 2015 – 2020

   ·     PAYG Summary and Tax Returns for nominee: 2016 – 2019

9. The applicant appeared before the Tribunal on 13 March 2020 to give evidence and present arguments. The Tribunal received oral evidence from director Mr Tajinder Waraich Singh, and the nominee, Mr Varinder Singh Manan.

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

11. On 3 June 2020, the Tribunal wrote to the applicant pursuant to s359(2) of the Migration Act in relation to the applicant’s most recent Standard Business Sponsorship period (31 May 2013 to 31 May 2016) and invited the applicant to provide evidence including financial analysis and corresponding payments made in relation to the Training Benchmark obligations information by 17 June 2020. On 15 June 2020, the Tribunal received the applicant’s submission.

12. 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

13. 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)

14. 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.

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

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

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

17. 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.

18. The Department’s records indicate that Manan Transport Pty Ltd was approved as a standard business sponsor between 31 May 2013 and 31 May 2016. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Varinder Singh Manan, and nominated him 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.

19. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents including Business Activity Statements (BAS) and Financial Statements provided from 2015 to 2019 and the evidence of its current ABN and ASIC registrations dated 9 February  2020 show that the applicant is actively and lawfully operating a business in Australia.

20. At the hearing, Mr Singh (director of the applicant) told the Tribunal that the applicant initially operated a United Petroleum petrol station and retail franchise in Rosedale, Victoria. From January 2016 until November 2017, the applicant then operated a business known as the Truman Café in Albert Park, Melbourne until finalisation of agreement with Liberty Oil, when the applicant commenced operating a service station in Benalla in regional Victoria on Christmas Day 2017.

21. The ASIC current and Historical Company Extract dated 9 February 2020 shows that the registered address of the applicant was in Albert Park in 2017 and 2018 and since 2019 is designated as Benalla. The Tribunal notes that the nominee’s wife is currently also a director of the applicant and that nominee was a director of the applicant until 16 February 2016.

22. The applicant provided the Tribunal with a copy of its agreement (Commission Agency Deed) between Liberty Oil Australia and the applicant dated 20 December 2017 for a term up to December 2027. The Deed specifies the licence fee payable to Liberty Oil, commissions and other fees payable including site rental costs. In addition, the applicant provided a copy of the Retailer Supply Agreement with Liberty Oil Wholesale for the provision of non-fuel products to the applicant. The applicant also provided the Tribunal with a plan of the site it operates under the Liberty Oil / petrol banner at Benalla.

23. The applicant’s Accountant, CCP Accounting Services Pty Ltd, provided a letter dated 12 March 2020 (signed by Mr Nishaan Sewgoolam, Director). It states that CCP has acted for the applicant since 2018, that the tax returns for 2018 and 2019 were outstanding due to health issues relating to the applicant’s previous accountant, and that they would be provided when finalised. The applicant’s completed accounts were provided to the Tribunal on 7 May 2020.

24. Analysis of the applicant’s Financial Statements in 2018 and 2019 show a substantial increase in sales which Mr Singh attributed to the Benalla Liberty Oil site renovation and a consequential large increase in the sales of fuel (refer below). It also appears to the Tribunal that applicant operated and transacted its extended services (food etc) through another related entity in 2018 and in 2019 it was transferred, hence the dramatic sales variation noted in the financial year 2019.

25. The applicant also provided the Tribunal with supporting information regarding the performance of the applicant’s business. This includes invoices from Liberty Oil dated January, February, July, October and November 2019 which show the large increase in sales and details of various operational procedures for the Liberty Oil Benalla site that the applicant operates. The applicant also provided the Tribunal with other evidence of its operations in the form of various invoices from suppliers such as Repco, PDF Foods and Origin Energy.

$	2015	2016	2017	2018	2019
Total Income	690,853	1,180,968	2,097,916	2,319,676	6,706,652
Gross Profit	7,112	56,445	429,437	229,160	249,676
Total Assets	231,573	827,127	237,066	313,422
Total Liabilities	232,868	629,305	704,517	629,305
Net Assets	49,163	(392,239)	(391,095)

1. 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)

2. 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.

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

   ·     the nomination was made on 7 March 2017 for the position of Customer Service Manager;

   ·     the relevant 3-year period is therefore 7 March 2014 to 7 March 2017;

   ·     the nominee was initially employed by the applicant on 15 October 2014 while the holder of a Bridging visa B;

   ·     the nominee applied for a subclass 457 visa on 15 March 2013 on the basis of his nomination by the applicant as Customer Service Manager and was granted a bridging visa A on that date;

   ·     he was granted a subclass 457 visa on 17 February 2015, which was valid until 17 March 2017; and

   ·     he had therefore worked for the applicant in the nominated position for over 2 years prior to the nomination application being lodged.

4. In this case, the Department in its decision found that the applicant had not demonstrated that the nominee had been employed in the position for a total period of at least 2 years (not including any period of unpaid leave) in the period of 3 years immediately before the nominator made the application. The delegate found that the applicant had provided bank statements from a bank in the name of applicant for the period 25 November 2016 through to 26 July 2017. There were regular weekly transfers to an account in the name of ‘Varinder Singh Mani; however, there did not appear to be any payments made from this account to other personnel on the submitted organisation chart. Thus, the delegate gave little weight to the organisation chart as an accurate representation of the personnel actually employed by the business. It was also noted that a contract of employment between the applicant and the nominee provided was dated 2 February 2017 specifying that the nominee’s employment originally commenced on 15 October 2014. In the view of the delegate, there were several inconsistencies about the bona fide nature of any employment terms of the nominee and the associated employer obligations. Further it was noted that payslips, PAYG certificates or evidence of the superannuation contributions made on behalf of the nominee were not provided.

5. The Tribunal has reviewed all the material provided by the applicant including Organisation charts for its various businesses, the PAYG statements and Statutory Declarations of the employees, and Payrun Statements showing the employee names and payments made by the applicant. The material provided shows that the personnel specified on the Organisation charts were employees and had been paid by the applicant. 

6. The nominee’s Employment Agreement dated 15 October 2014 as provided to the Tribunal, indicates that the applicant was trading as United Petroleum, Rosedale and that the nominee was engaged as a Customer Service Manager. The nominee’s Employment Agreement dated 2 February 2017 specifies that the nominee was engaged in the same capacity although the applicant was now operating the Truman Café in Albert Park. The nominee’s most recent employment agreement shows that the nominee is engaged as Customer Service Manager for the applicant’s Liberty Oil business in Benalla.

7. The ANZ Business Bank Statements of the applicant and the nominee Bank Statements both demonstrate weekly payments to the nominee since 2015. The Tribunal notes that the applicant’s ATO Tax returns show that in 2015, the applicant’s Public Officer was the nominee, Mr Manan.

8. A letter dated 2 March 2017 from Mr Sanjeev Dhankhar (CPA), of SD Accountants in Dandenong states that the nominee has been working for the applicant as a Customer Service Manager with a salary of $55,800 (plus super).

9. Both the applicant director Mr Singh and later the nominee Mr Manan articulated in significant detail the role of the nominee as Customer Service Manager in the various businesses. For example, in relation to the applicant business known as Truman Café in Albert Park, Melbourne, the nominee told the Tribunal that the customers in the area are “high class” and expect a high standard of service.

10. In relation to the applicant business as Liberty Benalla, the applicant submitted that it serves approximately 3150 customers per week; that it is the only service station in Benalla providing a 24-hour service; that food service commences 5 am, 7 days a week and that the applicant also operates a bulk goods supply for local farmers. The applicant director Mr Singh told the Tribunal that the nominee “is a motivated worker”, that he has an adaptable skill set which is required in such a workplace. Further, the nominee “maintains a good relationship with the local community which is a key requirement for this position”. He is responsible for the applicant’s participation in local activities and social programs and he is required to maintain contact with regular customers and to seek their feedback about the customer service they have received. He is also required to provide training and direct staff, and to ensure all employees are fully trained in relation to Health & Safety obligations (including food safety, hygiene and equipment maintenance), product knowledge, managing customer service and complaints. Both the applicant and the nominee articulated their view as to the importance of the customer service role, noting that local repeat business was an important issue for the growth of the applicant’s business.

11. Mr Singh also told the Tribunal that in a regional location, good and reliable employees who have excellent customer service skills, the required qualifications and are familiar with products and services, are very hard to come by. In fact, in the view of Mr Singh, the nominee was a “remarkable asset” to the applicant’s business.

12. In a submission to the Tribunal dated 12 March 2020, the applicant provided a detailed list of the tasks required of the nominee in his role as Customer Service Manager. The nominee at the hearing, told the Tribunal in some significant detail what he does in his capacity as a Customer Service Manager. He stated that a dedicated Customer Service Manager is key to the success of the applicant’s business. He advised that originally the applicant director Mr Singh had considered recruiting another Customer Service Manager in 2015, however all the employees interviewed were unimpressive. Hence, the nominee undertakes the Customer Service role for the applicant’s business and Mr Singh’s role is to deal with Liberty Oil and the supply of fuel. Also, a key part of the nominee’s role the Tribunal was advised at the hearing, is to “up-sell” goods to customers – especially food – and his experience and role of the nominee whilst Customer Service Manager at the Truman Café was invaluable. The nominee, having been Customer Service Manager at the petrol operation in Rosedale from 2014, appears to be authoritative as to the tasks required of a Customer Service Manager.

13. The applicant also submitted various operational procedures for Liberty Oil Benalla including Customer Service Policies and Procedures signed by each employee, and each of those documents notes that the nominee is the Customer Service Manager.

14. Given the above findings, 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)

1. 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.

2. The applicant’s business has expanded significantly since it has undertaken its business at Benalla. The Tribunal is satisfied that the applicant has also provided information that indicates that the applicant company remains financially capable of continuing to employ the nominee in his full-time position on a salary of $56,576 plus superannuation, for the next 2 years.

3. Based on the documentary evidence provided on behalf of the applicant, including the nominee’s most recent contract of employment dated 17 March 2020 (which continues to be current in its essential terms as previous employment agreements dated 15 October 2015, and 2 February 2017), his PAYG summary statements to date, and the applicant’s financial information up to 2019, 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 his employment do not expressly exclude the possibility of extending his period of employment.

4. Given the above findings, 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)

5. 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.

6. The Tribunal accepts evidence of the organisational chart provided to the Tribunal in March 2020 that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee.

7. The Tribunal accepts that the day to day duties of the nominee are predominantly that of a Customer Service Manager.

8. The Tribunal is 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 contract of employment for the nominated position was originally dated 15 October 2014 and provided that the nominee’s salary is $55,800 per year plus superannuation. The nominee’s subsequent agreement was dated 2 February 2017 for the same salary.  At hearing, the nominee confirmed that this contract is ongoing but advised that his salary is now $56,575 (as evidenced by his recent bank payments) plus super.

10. The Tribunal has consulted a range of sources of information, including:

    • the Payscale website (accessed 30 May 2020) indicates that a Customer Service Manager would earn between $50,000 - $94,000:
    • the Government’s Job Outlook website (accessed 30 May 2020) which indicates that the average weekly earnings before tax for Customer Service Manager is $1,756 weekly:   
    • advertisements for various full time Customer Service Managers positions in the Benalla regions listed on Seek.com.au as at 30 May 2020 where a salary range is $50,000 to $54,999:   >

      The Tribunal finds that the nominee’s salary is lower than the low end of the Payscale and Job Outlook ranges; however, the Tribunal accepts that the position is located in Benalla in Regional Victoria and that salaries are lower in regional areas in comparison to metropolitan Melbourne.

    • The applicant submitted the Payroll statements for nominee from various dates from 2015 to 2020, noting weekly payments that equate to his contracted salary. The submitted Bank Statements from both the nominee and the applicant also reflect that obligated salary payments have been made to the nominee.

    • Under these circumstances, and on balance, the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location.

    • The Tribunal is further satisfied that the original contract of employment dated 15 October 2014 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).  Updated contracts of employment in 2017 and 2020 indicate that these terms remain current.

    • 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 Tribunal notes that the applicant’s first approval as a standard business sponsor (as in force at the time the nomination application was made) ran between 31 May 2013 to 31 May 2016. The applicant’s most recent standard business sponsorship (SBS) was approved for the period 23 June 2020 until 23 June 2025.

    • The training requirements applicable for an established business with approval as a standard business sponsor in that period in the applicable 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.

    • 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 identified

      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

    • 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.

    • In response to the Tribunal’s request for documentary evidence in relation to the Training Benchmark payments, on 8 July 2020 the applicant provided a submission including evidence of Training Benchmark A payments to William Angliss College in the sum of $11,098 over 2014-2017 and attributed to payments for 2015 and 2016 as follows:

$	13/2014	14/2015	15/2016	Total
Total Payroll	132,372	122,874	309,095	564,095
Training Benchmarks 2% obligation based on Payroll	2,647	2,457	6,181	11,286
2% Payment to William Angliss: Training Benchmark year attribution	2,370	2,457	6,181	$11,098

1. The Tribunal notes that the sum paid by the applicant over the entire SBS period is $188 less than the 2% of payroll for the SBS period. Further, the payment attributed to 2016 ($6,181) was in fact paid on 6 March 2017. The applicant acknowledged that the payments were made later than required and were less than the total sum required, however requested that the Tribunal disregard the late payments on the basis that the contributions were made “close to the sponsorship approval period” and are “nearly” 2% of total payroll for the SBS period”.

2. Whilst r.5.19(3)(f)(i) is not met by the applicant, the Tribunal finds pursuant to r.5.19(3)(f)(ii) it is reasonable to disregard r.5.19(3)(f)(i), and that the applicant has met its Training Benchmark obligations on the basis that all but $188 of the required amount has been paid, and the final payment was made for the last complete SBS period, and that the applicant has recently been granted a new SBS until 2025.

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

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

4. 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. 

5. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

7. 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.

8. There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations.

9. The applicant provided the nominee’s payslips which show superannuation payments from the applicant to the nominee in accordance with the applicant’s employee superannuation obligations. 

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

11. 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

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

    Susan Reece Jones
    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.