Metro Transport Australia Pty Ltd (Migration)

Metro Transport Australia Pty Ltd (Migration) [2021] AATA 3458 (20 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Metro Transport Australia Pty Ltd
CASE NUMBER:  1826405
HOME AFFAIRS REFERENCE(S):          BCC2017/2744868
MEMBER:Namoi Dougall
DATE:20 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 20 August 2021 at 2:32pm

CATCHWORDS
MIGRATION–nomination –Transport Company Manager – labour market testing requirements in s 140GBA of the Act are not applicable – nominee performed the nominated occupation on a full-time basis – business was able to financially support the position –decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 23 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 2 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(f) because the delegate was not satisfied that the nominee performed the nominated occupation on a full-time basis or that the business was able to financially support the position due to the scale of the business and the lack of evidence about the size of the fleet, current and ongoing operations and staffing levels.
At the first hearing on 28 July 2021, the Tribunal received oral evidence from the applicant’s Operational Manager, Mr Adil Hussin, and from the nominee, Mr Parneel Datt. At the second hearing, Mr Mazden Dardas, a Director of the applicant, appeared on behalf of the applicant before the Tribunal 3 August 2021 to give evidence and present arguments, and oral evidence was again received from the nominee.
BACKGROUND
The business nomination application indicated that the applicant was to employ the nominee in the position of Transport Company Manager on a salary of $60,000 plus the superannuation guarantee at the location of Guildford, Sydney, New South Wales. A submission to the Department indicated that the applicant’s business collects, refurbishes and delivers pallets for a variety of construction material suppliers including Austral Masonry, PGH, Boral Roofing, Adbri Masonry and Bristol Roof Tiles. The business was established in August 2014 and currently has10 employees including the nominee and 8 subcontracted drivers.
Currently the business has a fleet 35 trucks, trailers and other related vehicles.
The applicant was represented in relation to the review by its registered migration agent.
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 the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Mr Parnell Datt in the nomination. The nomination includes the location of Guildford, Sydney, New South Wales, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Transport Company Manager 149413. For these reasons, the requirements of reg 2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Departmental records indicate that the applicant was approved as a standard business sponsor on 20 April 2017 and that the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor. For these reasons, the requirements of reg 2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The applicant has identified in the nomination Mr Parneel Datt, the nominee, to work in the nominated occupation of Transport Company Manager. For these reasons, the requirements of reg 2.72(5) are met.
Requirements for existing Subclass 457 visa holders
As the nominee is not the holder of a Subclass 457 visa, the requirements of regs 2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·     the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·     if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument; or if the applicant is a party to a work agreement, the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·     the location(s) at which the nominated occupation is to be carried out.
The applicant has provided the name of the occupation, Transport Company Manager, and its corresponding ANZSCO code of 149413 and the location of Guildford, Sydney, which is where the occupation will be carried out.
For these reasons, the requirements of reg 2.72(8A) are met.
Certification relating to conduct under s 245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.
Having perused the Department’s file, the Tribunal is satisfied that the applicant has provided the required certification as part of its nomination.
For these reasons, the requirements of reg 2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
On the Departmental file is information which was provided to the Department and indicates that the applicant employed people on a cash basis, including Parneel Sanjay Datt, who were on visas without work rights. The information was primarily about the nominee working in Australia on a cash basis and without ‘work rights’ but the information was provided at a time between when the nominee was nominated in the applicant’s business nomination application lodged on 2 August 2017 and when he commenced working for the applicant on 21 April 2021. However, the address included in the information provided to the Department where it was claimed that the nominee worked is not the address of the applicant’s business.
On 14 July 2021, the Tribunal wrote to the applicant providing the above particulars of the information provided to the Department. The Tribunal also stated in its letter that the information is relevant to the review because it is adverse information known to the Department on which the Tribunal may find that the applicant does not meet reg 2.72(9)(a) and, if the Tribunal also finds that it is not reasonable to disregard the adverse information, then the Tribunal may also find that the applicant does not meet all of the criteria in reg 2.72(9). Further, as it is a requirement that all criteria in reg 2.72 be met for a business nomination to be approved, on the above, the Tribunal may find that as the applicant does not meet all applicable criteria, the business nomination application should not be approved and the Tribunal may affirm the delegate’s decision.
The Tribunal’s letter invited the applicant to give comments on or respond to the information in writing or at the hearing on 28 July 2021, as well as inviting the applicant to provide a submission as to why it would be reasonable to disregard the adverse information referred to above.
The Tribunal in the letter also informed the applicant that the Department had notified the Tribunal that s 376 of the Act applies to the above information and, therefore, the Tribunal had a discretion as to whether it discloses the information. A copy of the certificate was enclosed in the letter for the applicant’s information and comment. Further, the applicant was invited to provide any comments regarding the validity of the certificate, if they wished to do so, in writing or at the hearing on 28 July 2021.
Provided to the Tribunal were bank statements for the applicant’s ANZ Business Extra account from April 2018 to May 2021. The Tribunal, at the first hearing, referred to the applicant’s ANZ Business Extra account indicating that a number of individuals were being paid whose payments did not match up with the PAYG summaries for that year or who only began to be issued with a PAYG summary the following tax year. The Tribunal commented that this may indicate that these individuals were being paid cash, albeit by bank transfer, and support the adverse information set out in the Tribunal’s letter of 14 July 2021. Mr Hussain stated that some of the business’s employees start as employees and then become subcontractors with their own ABN. He further explained that they promote within the business, and the employees can change their status, particularly when they became a driver, and they usually become a subcontractor. The Tribunal asked for a list of employees and subcontractors, when they started and, where relevant, finished with the business and their employment status for the past 3 financial years to be provided to the Tribunal prior to the second hearing. The Tribunal explained that the discrepancy between those being paid regularly and the PAYG statements could confirm the adverse information set out in the Tribunal’s letter of about the business employing individuals on a cash basis. Subsequently, the Tribunal was provided with the requested information which indicated that there were very limited discrepancies between salary payments in the applicant’s bank account and PAYG summaries and other payroll records.
At the second hearing, Mr Dardas said he refutes the allegations set out in the Tribunal’s letter. He stated they only deal with tier 1 companies, all transactions and payments go through the applicant’s accounts and there are no cash withdrawals. The applicant’s accounts indicate that the company cannot get cash to pay people. He also stated that the volume of work that the applicant does for its tier 1 clients is such that there is no room for extra work because, if there was extra work, the applicant would need additional vehicles. The Tribunal referred to the business nomination and visa applications being lodged in August 2017 but the nominee was only employed in April 2020 and asked why the applicant waited so long to employ the nominee, and Mr Dardas said it was a challenge to find someone as it does come down to how much you are willing to pay and they did try to find someone. The nominee is being paid $60,000 plus superannuation.
Provided to the Tribunal were bank statements for the nominee’s Commonwealth Bank account from 1 July 2017 to 30 December 2020 and Westpac Choice account from 30 September 2020 to 31 March 2021. At the second hearing, the Tribunal referred the nominee to the cash deposits being made at fairly regular intervals into his bank account particularly in the Commonwealth Bank account. The nominee responded stating that he had brought with him from Fiji FJD6,500. He had intended to use cash but as cash was not accepted for many things, he had to deposit it into his account and use his card. After 8 or 9 months, the nominee’s wife came and visited him and she also brought with her FJD8,000 which he used the same way. Subsequently, the nominee provided a statutory declaration to the Tribunal in which his spouse confirmed that she brought the cash with her to Australia when she visited the nominee in May 2018.
At the second hearing, the Tribunal asked the nominee why he did not put all his money into his bank account once he found out that he needed to pay with a card, and the nominee responded by stating that he was not sure he would be remining in Australia so he did not want to exchange all his currency in to Australian dollars. The nominee also stated that his sister also provided help. In his statutory declaration, the nominee stated that his sister gave him a total of $1,200 but now they are not on speaking terms. The Tribunal asked why he put the money into his account in small amounts, and he stated that he had to pay medical insurance and living expenses. He also had friends who helped him out with smaller amounts of $100 or $150. His medical insurance was $112 a month and his living expenses were roughly $300 to $400 a month. However, the amount he needed was not regular and when account dropped down, he would top it up, but he wanted to be sure about what was happening to him.
At the second hearing, the Tribunal asked the nominee where he got the money exchange into Australian dollars, and he stated that he did so at shopping malls, but he did not keep receipts. He exchanged at 2 places, firstly at Seven Hills and then at Mount Druitt. He lived in Seven Hills in 2017 for a few months before moving to Mount Druitt where he remained until April 2020. He now lives in his own accommodation. In his statutory declaration, the nominee stated that he lived with a friend, Akila Khan, initially who gave him $2,000 before he lived with his cousin, Shavneel Dutt, who also gave him $2,000. Subsequently, the Tribunal was provided with a statutory declaration from Mr Shavneel which set out in basic terms the same statements as the nominee.
At the second hearing, the Tribunal noted that he used his card for fuel and asked why he needed the use of the car, and he said to go to malls as he was bored at home. The Tribunal noted that he was eating out in a number of suburbs and buying petrol in those suburbs which may indicate he was working at a variety of locations. In his statutory declaration, the nominee stated that it was his first cousin who lent him his car and he contributed by paying for petrol and toll expenses.
Subsequently, the Tribunal was provided with a statutory declaration from Mr Shavneel which set out in basic terms the same statements as the nominee.
The nominee has provided an explanation about the regular cash deposits in his bank account. The Tribunal still has concerns about the source of the cash for those deposits, however, the Tribunal will not test the subsequent information in the statutory declarations provided after the second hearing as the criteria in reg 2.72(9) is only relevant to adverse information about the person (in this review, the applicant) or a person associated with the person. The meaning of ‘associated with’ for the purposes of the Act and Regulations is set out in reg 1.13B and, although it can include officers of an entity, it does not include employees so the applicant is not associated with the nominee.
Once the applicant clarified who was paid as an employee and who was paid as a subcontractor and from when, the Tribunal is satisfied that the applicant was not employing workers on a cash basis through bank transfer. The Tribunal accepts the applicant’s argument that they work for tier 1 companies who themselves operate in a lawful manner and the business does not have the capacity for other work that may be done on a cash basis. Also, the applicant has provided significant financial, including taxation, information which satisfied the Tribunal that the applicant is lawfully operating. The oral evidence provided by the nominee at the hearing was not referrable the applicant and, as referred to above, the address where it was claimed that the nominee worked on a cash basis was not the address of the applicant’s business. Therefore, the Tribunal is satisfied that the adverse information is not adverse information in relation to the applicant. For these reasons, the requirements of reg 2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa), as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances, this instrument may also require the nomination of an occupation to be supported in writing to the Minister by a specified organisation before the nomination can be approved: reg 2.72(10)(b).
The nominated occupation of Transport Company Manager and its 6-digit code of 149413 is specified in the instrument. Also specified in the instrument are caveats which, if relevant to the nomination, would make the occupation inapplicable for the nominee as a Subclass 457 visa applicant. Those caveats are:
9The position predominantly involves responsibility for low-skilled tasks.
Example 1:Rostering, maintaining records, reception duties and allocating duties to housekeepers, porters or doorpersons.
Example 2:Fruit picking or packing or feeding of livestock or animals.
Example 3:Truck driving.
19The position is in a business that has an annual turnover of less than AUD1,000,000 …
21The position is in a business that has fewer than 5 employees …
The Tribunal has been provided with significantly more financial information than the Department, including BAS summaries from 1 January 2019 to 31 December 2020 and financial statements for the tax years ending 30 June 2019 and 2020, as well as the company tax returns for the same financial years. The financial statements for the tax years ending 30 June 2019 and 2020 indicate that the applicant’s turnover for those years was $2,780,840 and $3,462,179 respectively. Also provided was a draft internal profit and loss statement for the period ending 30 June 2021, which indicates that the turnover for that period is $4,277,999. The applicant also provided bank statements for its ANZ Business One account and its ANZ Business Extra account for the period April 2018 to May 2021. Further, the Tribunal has been provided with payroll information for the periods ending 30 June 2020 and 2021, which indicate that the applicant currently employs 10 employees.

On the evidence, the Tribunal finds that the applicant’s turnover for the 2019 and 2020 financial years was more than AUD1,000,000. Further, on the additional information, the Tribunal is satisfied that the applicant’s turnover for the financial year ending 30 June 2021 will be more than AUD1,000,000.
In relation to caveat 9 set out above, the Tribunal has made findings below that the position associated with the nominated occupation is genuine, and on that finding, the Tribunal also finds that the position is not one that predominantly involves responsibility for low‑skilled tasks.
For the above reasons, the Tribunal finds that the position associated with the nominated occupation is applicable for a Subclass 457 visa applicant. For these reasons, the requirements of reg 2.72(10)(aa) are met.
The relevant instrument does not require the nominated occupation of Transport Company Manager to be supported in writing to the Minister by a specified organisation before the nomination. For these reasons, the requirements of reg 2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009 (Cth).
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in reg 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/013: reg 2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 which is $250,000: reg 2.72(10AB). The nominee’s proposed annual earnings of $65,000 is less than those specified in the instrument.
The evidence before the Tribunal indicates that the nominated position is currently filled by the nominee and that there are no Australian citizen employees in the applicant’s business performing equivalent work at the same location.
At the first hearing, the Tribunal explained the requirements of reg 2.72(10)(c) including that the Tribunal would like to ensure the applicant had the financial capacity to pay the nominee’s salary and superannuation, and Mr Hussain agreed to provide updated financial information. Further, Mr Hussain stated that he believes the nominee’s salary is the same as the warehouse managers but he himself receives a greater salary.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in an Employment Agreement dated 24 August 2017 and signed by Mr Hussain and the nominee, which indicates that the annual base salary of the nominee will be $60,000. The contract also sets out the details of the nominee’s superannuation and leave entitlements. The financial statements for the periods ending 30 June 2019 and 2020 as well as the draft internal profit and loss statement for the period ending 30 June 2021 indicate that the applicant made a profit of: $76,091; $211,391 and $262,574 respectively.
The Tribunal was provided with a number of market salary reports and surveys with current market salary information including similar job advertisements for Transport Company Managers. The applicant provided the salary range for a Fleet Manager in Australia as set out in Payscal.com. The Tribunal on its own investigations found the average salary for that position as set out on PayScale.com was $67,087. However, the Tribunal has considered the salary range for an average Transport Company Manager in Australia as set out on PayScale.com is $54,000 to $117,000, with the average being $74,736. The Tribunal is satisfied on the evidence before it that the proposed base salary of $65,000 is within the average market rate for an Australian equivalent.
On the evidence, the Tribunal is satisfied that the applicant has the resources to provide the nominee with terms and conditions of employment, including the salary of $65,000 and the superannuation guarantee, that will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal is satisfied that the nominee’s contract of employment has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Cth).
On the above, the Tribunal is satisfied that the nominee’s terms and conditions will be no less favourable than the terms and conditions that would apply to an Australian employee performing equivalent work at the same location. For these reasons, the requirements of reg 2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: reg 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive‑based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.
Likewise, the requirement in reg 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: reg 2.72(10AB).
In this case, the nominee’s annual earnings are $65,000, and as this is not equal to or greater than the threshold of $250,000 specified in IMMI 13/028, reg 2.72(10)(cc) applies.
The Tribunal is satisfied that the relevant rate of pay is greater than the TSMIT of $53,900. For these reasons, the requirements of reg 2.72(10)(cc) are met.
Certification under reg 2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The Tribunal is satisfied that the relevant certifications have been made in the nomination form. For these reasons, the requirements of reg 2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Transport Company Manager (149413). The duties listed in the ANZSCO for (1494) Transport Service Managers are as follows:
Tasks include:
·     organising the purchase and maintenance of transport vehicles, equipment and fuel
·     liaising with clients to determine requirements and providing customers with advice and information regarding vehicle type, purchase or hire rates and obligations and handling complaints
·     receiving orders and bookings, and planning and implementing transportation schedules
·     ensuring goods are stored and transported in conditions that will maintain their quality
·     arranging collection and delivery of vehicles and goods
·     maintaining business records and preparing operational statements and reports
·     coordinating activities associated with the arrival, departure, loading and unloading of trains
·     ensuring compliance with occupational health and safety regulations.
Further, ANZSCO states that a Transport Company Manager: “organises and controls the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers”.
Provided to both the Tribunal and the Department was the Employment Offer signed by the nominee and the Operations Manager of the applicant, Mr Aldi Hussain, and dated 4 September 2017. Listed in the contract were the nominee’s duties and responsibilities as follows:
·     Organises and control the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers
·     Organising the purchase and maintenance of transport vehicles, equipment
·     Responsible for scheduling transport and delivery times, allocating resources, organising vehicle maintenance and repairs, and developing a relationship with customers, receiving orders and bookings, implementing transporting schedules
·     ensuring goods are stored and transported in conditions that will maintain their quality
·     arranging collection and delivery of vehicles and goods
·     maintaining business records and preparing operational statements and reports
·     coordinating activities associates with the arrival and departure
·     ensuring compliance with occupational health and safety regulations, management of vehicle maintenance in line with standards.
At the first hearing, Mr Hussain stated that he looks after the finances of the business, he pays all the bills and invoices, and he supervises the warehouse manager and the nominee. He commenced with the business in 2014 and has been in this role for 2 years. Mr Hussain further stated he also deals with new clients and leasing requirements of the property where the business is located. If there are any complaints that cannot be dealt with, they are escalated to him. He is not responsible for human resources and marketing, which is the responsibility of Ms Dallal Naser who also commenced with the business in 2014. The hiring and firing of staff is split between Ms Naser and himself.
At the first hearing, Mr Hussain stated that the nominee is the primary transport manager. There are 2 sides to the business; one side that delivers construction materials and the other part of the business collects pallets. On the transport side, the main client is Austral Masonry who does the allocation from the applicant, however, when the applicant gets the client’s allocations, the nominee changes which driver does what as he knows the skills of each driver so he changes who does what to suit the job. Also, based on other deliveries, he will make changes to take on other jobs. He then gives the allocation back to Austral and provides run sheets to the drivers. The nominee deals with the drivers, clients who the business is subcontracted to and the client’s customers.
At the first hearing, Mr Hussain stated that the business collects 90% of the pallets used for construction material in Sydney and they are contracted to go back to collect those pallets by their clients. The clients have a target of 90% of the pallets to be collected each week which equates to 7,500 a week. Each site has on average 5 pallets per site so over 1,100 pallets are collected a week. The nominee works out the run sheets for the drivers and subcontractors who have areas where they collect pallets for the business. The nominee ensures that the customers get the deliveries and enters that into a database. If a driver is falling short of delivery targets, he will arrange support. They have to ensure that at least 7,500 pallets are collected per week as they would not be able to catch up if they fell behind.
At the first hearing, Mr Hussain stated that the nominee is also required to communicate with the warehouse about what the expectations are for the next week and how many pallets are being collected and from which clients, so the warehouse manager can resource the repairing of the pallets, space and staff. Another par to of the role is to source subcontractors. For example, a driver left recently and the nominee recommended sourcing a subcontractor. Ms Naser and Mr Hussain support the nominee during the hiring process by doing the final interviews, but it is the nominee’s role to find a suitable person. The final decision on who is hired is made by Mr Dardas. Mr Hussain explained that it is an extensive process as the nominee sets up trials with other drivers to see if the person can handle the job, and if they pass the basic training they are offered a job. The subcontracting paperwork is handled by Ms Naser.
At the first hearing, Mr Hussain stated that the nominee looks after the truck maintenance and helps source trucks, but Mr Dardas makes the final decision. Since the nominee started, the business has purchased 8 trucks. In relation to maintenance, he looks after the drivers’ logbooks, he has a cleaning and maintenance schedule, and he audits the trucks by doing site checks to ensure the trucks look presentable. The nominee is also responsible for tachometer checks.
At the first hearing, the Tribunal asked Mr Hussain if the nominee was responsible for training, and he stated that on the pallet collection side of the business a new employee would go out with one of the drivers and on the transport side he does occasionally take new trainees, such as recently, on a run to Canberra, he took an employee to train them on a B‑double. However, the initial induction is run by the nominee before the new employees are assigned to other drivers, depending on their experience. The nominee will also assess the training.
At the first hearing, Mr Hussain stated that the nominee is responsible for the drivers which is overseen by Mr Hussain. Mr Hussain is responsible for OH&S on the warehouse and recycling side of the business. The business has toolbox meetings once a month of which the majority are run by the nominee, with Mr Hussain and Mr Dardas occasionally assisting. Mr Hussain agreed that this was a shared responsibility for OH&S. Mr Hussain is also responsible for drafting policies and procedures and he will obtain input from everyone before drafting. The Tribunal asked at the first hearing what sort of reports are prepared by the nominee and Mr Hussain stated that the nominee maintains and audits the driver logbooks and manages the load restraint guide to ensure compliance with the guide. He also ensures fatigue management and prepares risk assessments for material handling and transport. For example, they had a delivery to Sydney CBD where there was limited space, so the nominee drove to the site to ensure they had an appropriate vehicle for that site.
At the first hearing, the nominee stated that he is responsible for managing all of the drivers and vehicles including the even distribution of the loads and the maintenance of vehicles. In relation to the drivers, he checks their experience as to whether they can fit a truck into that site and work the required equipment for the delivery. He plans which truck can go on each route as different trucks may not be able to go on all roads due to different weight limits. He audits all the drivers’ logbooks, for example, if a driver travels over 100 kilometres the driver has to fill in the logbook. He is responsible for the maintenance and servicing of the vehicles. Drivers report faults with vehicles to him and he arranges for the trucks to be repaired with a garage and he also arranges servicing and he has to inform the clients when a vehicle is not available due to it being serviced or repaired. He also makes sure that the vehicles are clean and that the vehicles meet the requirements for each job, such as correct lights, mirrors and signage. He allocates the role and liaises with the clients to assign which truck goes on which route and ascertains the availability of the truck. The nominee confirmed that he liaises with the client about the run sheet. He also added that he checks that the truck is full for the run, but if it is not a full load he adds another load, including loads from other clients. The nominee also makes sure the driver goes from a delivery to another site to pick up pallets. He has recently changed the Canberra run from an ordinary semitrailer with the capacity of 24 tonnes to a B-double with the capacity of 38 tonnes, which has increased productivity.
At the first hearing, the nominee stated that he is doing a course on mass management and he is practising improving the mass management of the business for RMS. It requires all loads, routes and drivers and, if requirements are met, RMS allows greater loads to be carried by each truck.
At the first hearing, the nominee stated that on the pallet side of the business, he is responsible for the servicing and maintenance of the vehicles. He is also responsible for organising the runs, including replacing drivers who are sick and assisting where required, such as if there is an urgent delivery to be done. Since the nominee started, he has been involved in the purchase of 3 trailers, 4 trucks and 2 forklifts. He works with Mr Hussain on the purchase of vehicles, but it is Mr Dardas who makes the final decision.
At the first hearing, the Tribunal asked the nominee who is responsible for training drivers, and the nominee stated on the collection of pallets side of the business a new employee goes on a job with another driver, however, on the delivery side of the business he takes the new employee and provides onsite training. The nominee also does the induction of the new drivers. In relation to OH&S, the nominee stated that the human resources manager is responsible for this but he checks a driver’s licence and driving reports. He also participates in toolbox meetings with Mr Hussain and Mr Dardas. In relation to employing drivers, he sources a driver but then hands it on to the human resources manager to finalise. If there is a complaint about a driver, he investigates and then hands it over to the human resources manager.
At the first hearing, the Tribunal asked the nominee what documentation he prepared for the applicant, and he stated that he prepares all the allocation documentation from clients and documentation related to the driver’s daily tasks. He makes sure that changes from clients in relation to runs are included in the driver’s documentation and the documents come in after a driver has competed a delivery. He also has a vehicle safety checklist that is completed on a weekly basis. He also ensures that the warehouse manager is aware of how many pallets are coming into the warehouse on a daily and weekly basis.

At the first hearing, the Tribunal discussed with Mr Hussain and the nominee the ANZSCO occupational dictionary in relation to the tasks for a Transport Company Manager. In relation to Mr Hussain, the Tribunal referred to the tasks listed in the ANZSCO appearing to be being performed by Mr Hussain, the warehouse manager, and Mr Datt, and not necessarily all being done by Mr Datt. The first task refers to the purchasing of vehicles, maintenance of vehicles and purchase of fuels. Mr Hussain agreed the purchase of vehicles is a shared task, but the maintenance of vehicles and purchase of fuel is the nominee’s responsibility. The second task listed in the ANZSCO is not relevant to the circumstances of the applicant as they do not hire out vehicles. In relation to the third task, the Tribunal stated that it accepted that the nominee is responsible for the planning and implementation of the transport schedule, although on the basis of amending what the clients had already prepared. As to the reference in the third task to receiving orders and books, Mr Hussain stated that the business does not receive orders and bookings, and the only orders they receive are for second-hand pallets and that is handled by the warehouse manager. The business works by the clients subcontracting the business so there are no customer bookings as the nominee does not deal with the public. A customer orders through a client of the business and the client subcontracts the delivery to the business by providing a manifest and run sheets.
At the first hearing, the Tribunal asked Mr Hussain who is responsible for quality control, and Mr Hussain stated that it is the driver’s responsibility until the delivery has passed the driveway and then it is the customer’s responsibility. Any issues are dealt with by the nominee, and if they need to be escalated they go to Mr Hussain. The sixth task refers to preparing business records, operational statements and reports which the Tribunal stated appears to be a shared responsibility, with Mr Hussain being responsible for most of the business records but the nominee preparing a few. As to the next task about foods coming in and out of the business, Mr Hussain stated it is the warehouse manager’s responsibility to be responsible for the pallets coming in and out of the warehouse. On the transport side, there are no deliveries that leave from the business’s site except, occasionally, when a preloaded truck remains on the site until the next day. The goods are never unloaded from the truck.
At the first hearing, the Tribunal stated to the nominee that he had already discussed the maintenance and servicing of vehicles and equipment, and that Mr Hussain had stated that the nominee was responsible for purchasing fuel and e-Tags. The Tribunal again referred to task 2 and that he does some of the tasks in task 2 but most of task 2 is not relevant to the circumstances of the applicant as they do not hire out vehicles. The Tribunal stated that it accepted that the nominee is responsible for the planning and implementation of the transport scheduling as he receives run sheets from the clients. The nominee stated that he is responsible for the goods arriving in good condition but the nominee is responsible for training the driver so the goods are loaded correctly. The nominee stated that they do not store goods. In relation to the task about business records, the Tribunal accepts that he is responsible for some records but primarily this task is the responsibility of the Operations Manager. The Tribunal then referred to the task about OH&S and he does have a role implementing OH&S.
At review, the Tribunal had more evidence before it than the delegate as to the operation of the applicant’s business and the tasks performed by the nominee and other employees. Although the nominee’s duties and responsibilities are not a perfect match for those set out in the ANZSCO for the position of Transport Company Manager, the Tribunal is satisfied on the evidence that the nominee does perform a number of duties relevant and equivalent to those listed in the ANZSCO, particularly around: receiving orders and bookings and planning and implementing schedules; ensuring that goods are stored and transported in a way to maintain quality; arranging the pick-up and delivery of goods; some recordkeeping; ensuring compliance with OH&S regulations; and ensuring the maintenance of the vehicles.
On the totality of the evidence, and on the Tribunal’s findings made above, the Tribunal is satisfied that the position associated with the nominated occupation is genuine. For these reasons, the requirements of reg 2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The applicant has provided a signed contract of employment dated 20 April 2017. For these reasons, the requirements of reg 2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of reg 2.72(11) and (12) are not applicable.
Labour market testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this case, the nominated occupation is Transport Company Manager ANZSCO 149413. This occupation is classified as Skill Level 1 in the ANZSCO. All occupations which are classified in the ANZSCO as Skill Level 1 are specified for the purposes of the occupational exemptions in s 140GBC(4)(b) of the Act: IMMI 13/137. Furthermore, the position description for the nominated position indicates that the minimum required qualifications for the position are a bachelor degree or higher qualifications relevant to the nominated position. In the circumstances, the skill and occupation exemptions to the labour market testing requirements in s 140GBC(3) of the Act are met and the nominee is exempt from having to satisfy the labour market testing requirements in s 140GBA of the Act.
For these reasons, the labour market testing requirements in s 140GBA of the Act are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Namoi Dougall
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
2.72 Criteria for approval of nomination — Subclass 457 …
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2021] AATA 3458

20 August 2021

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