Maryborough Highland Society Inc (Migration)

Maryborough Highland Society Inc (Migration) [2020] AATA 2849 (20 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Maryborough Highland Society Inc
CASE NUMBER:  1810415
DIBP REFERENCE(S):  BCC2017/1856315
MEMBER:Amanda Ducrou
DATE:20 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 April 2020 at 12:38pm
CATCHWORDS
MIGRATION – nomination of a position (employer nomination) – Temporary Residence Transition nomination stream – position of Chef – business actively and lawfully operating in Australia – financial capacity – recent write-off of bad debts from associated entity – terms and conditions of employment – genuine need for the position – training commitments and obligations – apprentice wages and training courses – employment of a qualified trainer – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37
CASES
Re Drake No. 2 (1978-1980) 2 ALD 634
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 31 March 2018 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 25 May 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy the training commitments and obligations requirements in r.5.19(3)(f)(i)(A) of the Regulations. Further, the delegate found that it was not reasonable to disregard the applicant’s failure to meet those requirements under r.5.19(3)(f)(ii).
On 12 August 2019 the Tribunal wrote to the applicant in accordance with s.359(2) of the Migration Act 1958 (the Act) inviting the applicant to provide information to the Tribunal. The letter invited the applicant to provide information that demonstrated that all of the relevant criteria in r.5.19 of the Regulations were met currently including, but not limited to, the criteria that the delegate had found were not established. Extracts of relevant parts of r.5.19 accompanied the letter. The letter asked the applicant to provide the information by 26 August 2019 and noted that the applicant could request an extension of time but any such request must be received before 26 August 2019. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant responded to the Tribunal’s request for information on 23 August 2019 and provided written submissions and documents in support of the application. The applicant provided further written submissions and documents on 26 August 2019.
Mr Malcolm Blandthorn, the Secretary, General Manager and Public Officer of the applicant appeared before the Tribunal on 21 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Anil Kumar Acharya. An interpreter in the Nepali language assisted the Tribunal at the hearing. The applicant’s registered migration agent, Mr Surendra Sigdel represented the applicant in relation to the review but was not present at the hearing. Mr Blandthorn confirmed that the applicant wished to proceed with the hearing in the absence of Mr Sigdel.
At the hearing the Tribunal invited the applicant to provide further documentation relevant to the application. The Tribunal received documents from the applicant on 25 September 2019, 6 December 2019 and 7 February 2020.
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 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)
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.
On the basis of information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the fee prescribed in r.5.37. The relevant s.245AR(1) certification was also provided in the application form.
The application for approval identifies Mr Anil Kumar Acharya as the nominee. According to the Department’s records, Mr Acharya held a Subclass 457 visa granted on 23 March 2015 on the basis of satisfying cl.457.223(4) at the time the application was made.
The application for approval identifies the occupation of Chef (ANZSCO 351311). The Tribunal is satisfied, based on the employment documents for the nominee and the other evidence, that the occupation identified in the application for approval is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is satisfied that this occupation carries the same 4-digit code (3513) as the occupation carried out by the nominee while he held the Subclass 457 visa.
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 Department’s records confirm that the nominator was the standard business sponsor who last identified Mr Anil Kumar Acharya in a nomination made under s.140GB of the Act. The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
The documents before the Tribunal included: the certificate of incorporation issued by Consumer Affairs Victoria certifying that the applicant is on and from 19 February 1993 incorporated under the Associations Incorporation Act 1981 (Vic); an Association Summary extract for the applicant issued by ASIC on 16 August 2019; an Association extract for the applicant issued by Consumer Affairs Victoria on 18 August 2019; extracts from the applicant’s Constitution and minutes from a special Board meeting of the applicant’s Board held on 3 October 2018; the applicant’s financial statements for the financial years from 2016 to 2018 (the financial statements included 2015 financial year information); audited financial statements for the applicant for the 2019 financial year signed by the applicant’s President and Treasurer including the independent audit report to the applicant’s members signed by the auditor on 26 September 2019; compilation profit and loss and balance sheets for the applicant for the 2015 to 2019 financial years; activity statements lodged by the applicant with the Australian Taxation Office (ATO) for the 2015 to 2019 financial years; a chart provided by the applicant detailing its organisational structure; payroll documents and other documents containing information about the applicant’s business activities. The documentary evidence was consistent with the applicant actively and lawfully operating a business in Australia.
Mr Blandthorn described the nature of the applicant’s business and the business operations. His oral evidence was consistent with the information in the documents before the Tribunal. Based on the oral and documentary evidence the Tribunal is satisfied that the applicant is a not-for-profit incorporated association owned by its members. The Maryborough Highland Society was established in 1857 to continue the activities of traditional Caledonian societies. The Maryborough Highland Society merged with the Maryborough Bowling Club in the 1920s, established bowling greens and tennis courts. The members of the applicant’s Board are voluntary members.
The delegate noted that the application for approval stated that the business commenced trading on 10 January 1857 but that public information relating to the business ABN 37631550150 states that the business was active from 1 November 1999. The Tribunal consulted ABN Lookup on 27 February 2020 ( This confirmed that the ABN status was active from 1 November 1999 and that the applicant was registered for goods and services tax from 1 July 2000. The Tribunal observed that the date of establishment of the business stated in the application for approval preceded the requirement for an entity carrying on business in Australia to obtain an ABN.
The Tribunal is satisfied that the evidence demonstrates that the business activities of the applicant include: the provision of food and beverages in restaurants and function venues; gaming; the provision of sporting facilities; and the promotion of sporting events. The Tribunal noted Mr Blandthorn’s oral evidence that the applicant was selected as the promoter for the 2020 Australian Pipe Band Championships. Based on the available evidence the Tribunal is satisfied that the nominator is actively and lawfully operating a business at 35 High Street, Maryborough, Victoria, Australia.
Given the above, the requirement in r.5.19(3)(b) is 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 two of the three 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 two years in the three years immediately before the application.
In this case, the relevant provision is r.5.19(3)(c)(i). This nomination application was made on 25 May 2017. The nominee was granted the Subclass 457 visa to work in the nominated occupation of Chef on 23 March 2015. The position identified in the nomination application was Chef (ANZSCO 351311). The position of Chef de Partie is one of the specialisations included in the occupation of Chef (ANZSCO 351311).
The Tribunal was provided with: the nominee’s PAYG payment summaries for the 2015 to 2016 financial years; taxation notices of assessment issued by the ATO to the nominee for the 2017 to 2019 financial years; employment agreement dated 21 April 2017 made between the applicant and the nominee; detailed position description issued by the applicant for the position of Chef de Partie; employee payment summary payroll records maintained by the applicant for the nominee for the pay periods ending on 25 January 2015 to the pay period ending on 16 April 2017 (setting out the hours worked by the nominee per pay period, the nominee’s taxable gross earnings, tax instalment deductions, net pay after tax and the employer superannuation contributions made by the applicant in respect of the nominee); letters by Mr Blandthorn as General Manager of the applicant dated 19 April 2017 and 22 August 2019 regarding the period of the nominee’s employment and his position; and records maintained by the applicant showing the annual leave and personal/carer’s leave taken by the nominee from 21 January 2015 to 19 April 2017 and payments made to the nominee in respect of leave.
The oral evidence of Mr Blandthorn and Mr Acharya was consistent with the documentary evidence concerning Mr Acharya’s qualifications and his duties and responsibilities in the position of Chef. The evidence demonstrates that Mr Acharya has been employed in the position of Chef by the applicant on a full-time basis from at least 21 April 2015. The Tribunal is satisfied based on the documentary and oral evidence that the nominee’s employment with the nominator in that position has been continuing and is current.
Based on the material before it, the Tribunal is satisfied that the nominee has been employed by the nominator in the position of Chef on a full-time basis in Australia for at least two years in the three years immediately before the nomination application was made.
Given the above findings, the requirement in r.5.19(3)(c) 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 two years on terms that do not expressly preclude the possibility of an extension.
The nominee is a person to whom r.5.19(3)(c)(i) applies. The employment agreement dated 21 April 2017 made between the applicant and the nominee provides for the nominee’s employment in the position of chef on a full-time basis from 21 April 2015. The agreement does not expressly exclude the possibility of extending the period of the nominee’s employment. The employment agreement stipulates that the nominee’s salary is $56,520.71 per annum exclusive of superannuation. Under clause 9 of the employment agreement, the applicant is required to make superannuation contributions for the nominee at the applicable statutory rate.
Mr Blandthorn confirmed that the employment agreement dated 21 April 2017 is the current employment agreement for Mr Acharya. Mr Blandthorn told the Tribunal that Mr Acharya’s current remuneration is higher than as stipulated in the employment agreement. Mr Acharya told the Tribunal that his current annual salary is approximately $63,900. Last year his annual salary was approximately $61,000. Every year he receives an increase in his salary of 2 or 3%. He receives superannuation in addition to his salary, paid to his nominated superannuation fund, Hostplus.
The applicant’s documents were consistent with the evidence of Mr Blandthorn and Mr Acharya concerning Mr Acharya’s current level of remuneration. The applicant’s payroll records confirmed that Mr Acharya’s taxable gross salary for the 2019 financial year was $65,304.08 and that his full-time base annual salary for the 2019 financial year was $63,399.17. The Tribunal accepted, based on the oral evidence of Mr Blandthorn and Mr Acharya that Mr Acharya’s current full-time base annual salary is approximately $63,900.
The Tribunal considered the evidence relating to the applicant’s financial capacity to employ the nominee for at least two years. The Tribunal had regard to the financial statements, including the audited financial statements for the 2019 financial year and the applicant’s activity statements.
The financial statements showed that the applicant’s operating expenses exceeded its total income for the 2017 financial year. Mr Blandthorn told the Tribunal that bad debts that were incurred when the applicant took over the Kyneton Bowling Club were written off in the 2017 financial year. While the financial year 2017 financial statements confirmed the write off of bad debts and that operating expenses exceeded total income. However, they showed that the value of the applicant’s net assets as at 30 June 2017 was $4,560,315. This corresponds with the equity held by the applicant’s members as at that date. The financial statements for financial year 2018 and the audited financial statements for financial year 2019 showed revenue of $6,040,773 for financial year 2018 and $6,350,528 for financial year 2019. The financial statements showed surpluses of income over expenses for both the 2018 and 2019 financial years. The expense for salaries and employee benefits was $2,161,577 for financial year 2018 and $2,479,998 for financial year 2019. The value of the applicant’s net assets was $4,836,925 as at 30 June 2018 and the value of the net assets increased to $4,964,873 as at 30 June 2019. There were also increases in the retained profits and the value of the equity held by members for the 2018 and 2019 financial years. As at 30 June 2018, the value of the equity held by the applicant’s members was $4,836,925 and as at 30 June 2019, it was $4,964,873.
The Tribunal’s analysis of the financial statements did not identify anything that was remarkable. The Tribunal noted Mr Blandthorn’s evidence that the applicant’s financial position fluctuates from time to time but that there is no change in its overall financial situation. The Tribunal is satisfied that the evidence demonstrates that the applicant is in a sound financial position with sufficient financial resources to meet ongoing financial liabilities.
The Tribunal is satisfied, based on the material before it, that the applicant has the financial capacity to employ the nominee as a full-time Chef and that the applicant has the financial capacity to maintain the nominee’s employment for at least the next two years.
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.
The terms and conditions of the employment agreement dated 21 April 2017 include terms relating to the nominee’s working hours, his annual salary and superannuation. The employment agreement provides that the nominee is entitled to accrue up to four weeks of paid annual leave and up to 10 days of paid personal/carer’s leave progressively during each year of service, based on the nominee’s ordinary hours of work.
Based on the oral and documentary evidence the Tribunal accepted that Mr Acharya’s current annual salary is $63,900 per annum. The application form stated that there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominee. Mr Blandthorn told the Tribunal that the applicant has difficulty attracting qualified chefs to work in its business, as it is not in a metropolitan area. All of the qualified chefs that the applicant employs, including the nominee, are remunerated at a rate of pay that is at least 20% above the applicable rate stipulated in the Registered and Licensed Clubs Award 2010 (the Award). The applicant provides all of its employees, including the nominee, with time in lieu of paying weekend and public holiday penalty rates of pay and reasonable over time. Currently, employees, including Mr Acharya, receive five weeks of paid annual leave. This policy was implemented after Mr Acharya’s employment agreement was made.

Mr Acharya’s full-time base annual salary of $63,399.17 for the 2019 financial year is more than 25% higher than minimum annual salary rate ($48,842) for a Level A Manager under the Award (which is the applicable classification for Mr Acharya’s position). From 1 July 2019, the minimum annual salary rate for a Level A Manager under the Award is $50,169. Mr Acharya’s current full-time base annual salary of $63,900 exceeds this rate by more than 25%. The Tribunal accepted based on the available evidence that under the current terms and conditions of his employment Mr Acharya is entitled to accrue up to five weeks of paid annual leave and up to 10 days of personal/carer’s leave progressively per year of service. The Tribunal noted that under the Award, certain types of pay loadings are not required to be paid for a manager who receives a salary of 20% in excess of the minimum annual salary rate for the appropriate classification in specified situations. Based on the available evidence the Tribunal is satisfied that this applies to the nominee and that the nominee’s rate of pay compares favourably with that specified in the Award.
The Tribunal is satisfied, based on the employment agreement, the oral and documentary evidence and the Award information, 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 nominator’s business premises.
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.
Based on information from the Department the Tribunal is satisfied that the applicant was most recently approved as a standard business sponsor on 20 September 2014 for a period of three years until 20 September 2017. The delegate found that the evidence did not establish that the requirements of r.5.19(3)(f)(i) were met and that the evidence did not demonstrate that it was reasonable to exercise the discretion permitted under.5.19(3)(f)(ii) to disregard r.5.19(3)(f)(i).
The applicable training benchmarks are specified in legislative instrument IMMI13/030. In accordance with IMMI13/030, the applicant may comply with the training requirements in either of two ways. In summary: Training Benchmark A requires the applicant to demonstrate recent expenditure by the business to the equivalent of at least 2% of its payroll to an industry training fund that operates in the same industry as the business; and Training Benchmark B requires the applicant to demonstrate recent expenditure by the business to the equivalent of at least 1% of its payroll in the provision of training to its employees.
Under IMMI13/030, 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, as part of the organisational training strategy;
·     expenditure on the employment of apprentices on an ongoing basis in numbers proportionate to the size of the business;
·     expenditure on the 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.
IMMI13/030 stipulates that expenditure that cannot count towards Training Benchmark B includes expenditure on training only undertaken by persons who are not Australian citizens or permanent residents or only undertaken by persons who are principals in the business or their family members.
The written submissions from the applicant’s representative addressed the applicant’s fulfilment of the training requirements and training obligations. The submissions included tables setting out the applicant’s payroll for the 2015 to 2019 financial years and the expenditure that the applicant claimed in relation to its training requirements and obligations. Mr Blandthorn gave oral evidence of the expenditure on training at the hearing.
The material that the applicant provided in relation to its training expenditure included:
·     documents confirming the engagement of apprentices by the applicant;
·     PAYG payment summaries for the apprentices;
·     employment contracts made between the applicant and Mrs Patricia Cannons made on 17 July 2013 and on 6 July 2015; the most recent employment contract was for Mrs Cannons’ employment as the applicant’s food, beverage and training manager;
·     position description for the position of food, beverage and training manager;
·     Certificate IV in Training and Assessment issued to Mrs Cannons;
·     PAYG payment summaries for Mrs Cannons;
·     schedule of certificate courses undertaken by the applicant’s employees;
·     receipts and tax invoices for training;
·     payroll records.
The payroll expenditure identified by the applicant for the financial years from 2015 to 2018 corresponded with the information in the applicant’s itemised payment summary payroll records. It is commensurate with the salaries and employee benefits expenses listed in the applicant’s financial statements. Based on the documentary evidence and on the oral evidence of Mr Blandthorn the Tribunal accepted that the applicant had the following payroll expenditure:

Financial year

2015

2016

2017

2018

Wages paid to employees

$1,763,830

$1,870,427

$1,932,274

$1,961,138

Superannuation contributions paid to employees

$160,647

$164,540

$169,369

$175,710

Total payroll expenditure

$1,924,477

$2,034,968

$2,101,644

$2,136,848

The applicant submitted that it had complied with the training requirements under Training Benchmark B of IMMI 13/030 by expenditure on: apprentice wages; training courses for employees who are Australian citizens or permanent residents; and the employment of a fully qualified trainer whose role and responsibilities include training staff.
Based on the oral and documentary evidence the Tribunal is satisfied that the applicant employed two apprentices in the period of the most recent standard business sponsorship approval. The apprentices were Mr Matthew Conoplia and Mr Michael Clark. The apprenticeship training contracts confirmed the formal engagement of Mr Conoplia and Mr Clark as apprentices and detailed the formal training courses they undertook as part of their apprenticeships. Based on the available evidence the Tribunal accepted that Mr Conoplia and Mr Clark are Australian citizens. They are not principals in the business or family members of principals. Mr Clark did not complete his apprenticeship. He last worked for the business in the 2015 financial year. Mr Conoplia completed his apprenticeship during the 2017 financial year. He continued to work in the business until around 6 months prior to the hearing. The applicant currently employs an apprentice, Mr Jayden Gullery, who is an Australian citizen.
Based on Mr Blandthorn’s oral evidence and the documents provided by the applicant the Tribunal is satisfied that the applicant has employed Mrs Patricia Cannons in the position of Food Beverage and Training Manager since 6 July 2015. Mr Blandthorn told the Tribunal that prior to then Mrs Cannons was employed as Operations and Human Resources Manager. Mrs Cannons obtained a Certificate IV in Training and Assessment in 2015. There were deficiencies in staff training and they needed a staff trainer to develop and implement staff training programs. Mrs Cannon’s role and duties changed and she became responsible for staff training. She spends one-third of her time on staff training and administering the training program.
The Tribunal is satisfied based on the available evidence that Mrs Cannons is a qualified trainer employed to train the applicant’s staff as a key part of her job. The applicant claims one-third of its expenditure on Mrs Cannons’ salary as recent expenditure that can count towards Training Benchmark B. The proportion of Mrs Cannons’ salary claimed by the applicant as expenditure that can count towards Training Benchmark B is consistent with the terms of Mrs Cannons’ employment contract dated 6 July 2015 which stipulates (at clause 1.5) that, as a general rule, one-third of Mrs Cannons’ time is to be spent on staff training and the administration of the staff training program. The documents that the applicant provided confirmed that the employees who undertook the training are Australian citizens.
The Department’s policy guidelines (as set out in the Procedures Advice Manual, or PAM3, as applicable when this application was made) state that conference fees may be counted towards Training Benchmark B only if there is clear evidence that the conference provided a professional development opportunity to the attendee. The policy provides that networking opportunities are not considered to be professional development. PAM3 provides that costs associated with training that is able to be counted towards Training Benchmark B can be counted as expenditure towards that Benchmark if the costs are reasonable and necessary. The policy states that necessary associated costs can relate to the costs of printing of training material but that to be considered reasonable these costs should be a minor proportion of the expenditure counted towards the training Benchmark. The Tribunal is mindful that while it may be guided by policy it is not bound to follow policy (see Brennan J in Re Drake No. 2 (1978-1980) 2 ALD 634). The Courts have held that the Department’s PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.
The expenditure claimed by the applicant includes expenditure for the Mercury AGM and conferences. Mr Blandthorn confirmed that these were networking events. The Tribunal did not accept that this expenditure can count towards Training Benchmark B.
The applicant’s claimed expenditure includes claimed expenditure for Mercury AHG and AGE study tours. Based on Mr Blandthorn’s description of the nature of the study tours the Tribunal is satisfied that they provide professional development opportunities to the attendees and were not networking opportunities. However, part of the claimed expenditure for the Mercury AHG study tour was for a director of the applicant’s Board. The Tribunal was satisfied that this part of the claimed expenditure cannot count towards Training Benchmark B.
The applicant claimed expenditure for printing training modules for the 2016 financial year. Based on the itemised invoice from Small Print the Tribunal accepted that this expenditure relates to the printing of training material and that it represents a minor proportion of the claimed training expenditure for that financial year. The Tribunal considered that this expenditure was for reasonable and necessary costs associated with training and is able to be counted towards Training Benchmark B.
Based on the oral and documentary evidence the Tribunal is satisfied that the applicant had the following expenditure for training undertaken by Australian citizens or permanent residents in the financial years from 2015 to 2018 that can be counted towards Training Benchmark B.

Financial year

2015

2016

2017

2018

Apprentice wages

$54,542

$42,701

$6,239

nil

Trainer wages (30% of total trainer wages)

nil

$23,019

$20,570

$21,133

Training courses for employees

$2,973

$1,834

$10,051

$3,938

Total expenditure

$57,515

$67,554

$36,860

$25,071

Having regard to the evidence and based on its findings the Tribunal calculated 1% of the payroll of the applicant’s business as: $19,244.77 for financial year 2015; $20,349.68 for financial year 2016; $21,016.44 for financial year 2017; and $21,368.48 for financial year 2018. The Tribunal is satisfied that, consistently with the information in the table above the applicant’s expenditure on training that can be counted towards Training Benchmark B exceeds 1% of the payroll of the business for those financial years.
The Tribunal noted that the obligation to provide training under r.2.87B requires the sponsor to comply with training requirements for each individual 12 month period they are a standard business sponsor of at least one primary sponsored person on a Subclass 457 visa: r.2.87B(2). The period of the applicant’s most recent approval as a standard business sponsor, being the period that commenced on 20 September 2014 until 20 September 2017, does not coincide with the usual financial year periods (which commonly commence on 1 July of each year and end on 30 June of the following year). However, the Tribunal was satisfied that the evidence demonstrates that the applicant’s expenditure for training that can be counted towards Training Benchmark B is in excess of 1% of the payroll of the business for each individual 12 month period during the period of the applicant’s most recent approval as a standard business sponsor.
The Tribunal is satisfied, based on the evidence before it, that Training Benchmark B has been met in respect of the most recent standard business sponsorship approval period.
The Tribunal observed that the material before it was more extensive than the material that was available to the delegate. Based on the available evidence, the Tribunal is satisfied that the applicant fulfilled the commitments made relating to the training requirements and complied with the applicable sponsorship obligations relating to the training requirements during its most recent period of approval as a sponsor.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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.
There is no information before the Tribunal indicating that there is adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly, the requirement in r.5.19(3)(g) 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 no information before the Tribunal indicating that the applicant does not have a satisfactory record of compliance with workplace relations laws in the location in which the applicant operates its business and employs employees in the business.
Accordingly, the requirement in r.5.19(3)(h) is met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Amanda Ducrou
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 2849

20 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Financial year	2015	2016	2017	2018
Wages paid to employees	$1,763,830	$1,870,427	$1,932,274	$1,961,138
Superannuation contributions paid to employees	$160,647	$164,540	$169,369	$175,710
Total payroll expenditure	$1,924,477	$2,034,968	$2,101,644	$2,136,848