Raw Ingredient Catering Company Pty Ltd ATF the Rawlings Family Trust (Migration)

[2021] AATA 3201

Raw Ingredient Catering Company Pty Ltd ATF the Rawlings Family Trust (Migration) [2021] AATA 3201 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Raw Ingredient Catering Company Pty Ltd ATF the Rawlings Family Trust

CASE NUMBER:  1820923

HOME AFFAIRS REFERENCE(S):          BCC2017/3172804

MEMBER:Ian Berry

DATE:29 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 29 June 2021 at 11:58am

CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream –  restaurant manager – position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 years – standard business sponsorship (SBS) was approved –applicant lawfully operating a business in Australia – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 June 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).

2. The applicant applied for approval on 1 September 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(i) of the Regulations because the applicant did not provide the delegate with evidence showing that the position of restaurant manager continues to fit within the regular and ongoing business activity of the employer. The applicant did not provide a submission to substantiate as to why it continues to have the genuine need to employ a restaurant manager.

5. The applicant was represented by its director Mr Rawlings who appeared and represented the applicant at the Tribunal on 23 March 2021. The Tribunal received oral evidence from the applicant’s representative Mr Rawlings.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

6. 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

7. 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 applicant’s evidence before the department

8. In support of its application, the applicant provided the following evidence in relation to the training benchmark criteria:

   ·The Application for Employer Nomination for a Permanent Appointment – this Training compliance: Most recent Standard business sponsorship.

   ·Training contract (apprenticeship/traineeship) apprentice SCW, signed 5 May 2017 [1].

   [1] the Tribunal decided to refer to apprentices and trainees by their initials.

   ·Training contract apprentice OJRB signed 13 July 2017.

   ·Profit and loss statement for 1 July 2016 – 16 May 2017.

   ·Work Skills Training Plan Mark 1 – LJ apprentice, dated 23 June 2015.

   ·Training contract KBB signed 4 July 2017.

   ·Profit and loss statement 1 July 2015 – 30 June 2016.

   ·Apprenticeship/traineeship Training Plan (ATF-045) DL apprentice with units of competency, made 3 August 2016.

   ·Training contract SCW made 5 May 2017.

   ·Organisational structure chart undated.

   ·Work Skills Training Plan Mark 1 –Fil Francis Benedicto, signed 20 July 2015.

   ·Training contract MR signed 21 March 2017.

   ·Organisational structure chart undated.

   ·Activity statement for the period ending 30 June 2017.

   ·GST audit report for the period 1 April 2017 – 30 June 2017.

   ·Profit and loss statement 1 July 2017 – 17 April 2018.

   ·GST audit report 1 January 2018 – 31 March 2018.

   ·Activity statement for period ending 30 September 2017.

   ·Activity statement for the period ending 31 December 2017.

   ·GST audit report on October 2017 – 31 December 2017.

   ·Payroll activity summary 18 July 2016 to 18 August 2017.

   ·Organisational structure chart undated.

   ·GST audit report 1 July 2017 – 30 September 2017.

9. The applicant provided further evidence in the form of information and documents both before and after the hearing on 23 March 2021, detailed as follows (not including those documents previously provided to the Department and disclosed above):

   ·PAYG payment summary – Apprentice DL: for the period 1 July 2017 – 2 October 2017.

   ·PAYG payment summary – apprentice KB: for the period 1 July 2017 – 30 June 2018.

   ·PAYG payment summary – apprentice  MR: for the period 1 July 2017 – 30 June 2018.

   ·PAYG payment summary – apprentice OB: for the period 1 July 2017 – 30 June 2018.

   ·PAYG payment summary – apprentice SCW for the period 1 July 2017 – 30 June 2018.

   ·Payroll employment summary: 1 July 2016 – 16 May 2017: apprentice MR.

   ·Payroll employee summary 1 July 2016 – 16 May 2017: apprentice SCW.

   ·Organisational structure chart (previously supplied) undated.

   ·Payroll employee summary: 1 July 2016 – 16 May 2017: apprentice FB.

   ·Payroll Activity Summary 25 May 2016 – 24 May 2017.  Setting out the Items by Earnings.

   ·Payroll employee summary: 1 July 2015 – 30 June 2016: apprentice DL.

   ·Payroll employee summary: 1 July 2016 – 16 May 2017: apprentice DL.

   ·Payroll employee summary: 1 July 2015 – 30 June 2016: apprentice FB.

   ·Organisational structure chart undated.

   ·Training plan for apprentice/trainee OB dated 1 August 2017.

   ·Training plan for KB dated 18 July 2017.

   ·Training contract apprenticeship/traineeship AGG apprentice signed 10 December 2019.

   ·Organisational structure chart undated.

   ·Trading statement for the year ended 30 June 2019.

   ·Administrative appeals Tribunal document submission 29 January 2021.

   ·Income statement for the year ending 30 June 2019.

   ·Profit & Loss statement ended 30 June 2018.

   ·Activity statement for the period ending 30 June 2019.

   ·Activity statement for the period ending 30 September 2019.

   ·Activity statement for the period ending 31 December 2020.

   ·Transactions by tax rate audit report for the period 1 January 2019 – 31 March 2019.

   ·Transactions by BAS field audit report from 29 January 2019 – 30 March 2019.

   ·Activity statement for the period ending 30 June 2020.

   ·Activity statement for the period ending 31 March 2019.

   ·Activity statement for the period ending 31 March 2020.

   ·Activity statement for the period ending 30 September 2020.

   ·Trust tax return 2018.

   ·Trust tax return 2019.

   ·Trading statement for the year ended 30 June 2019.

   ·Organisational structure chart undated.

   ·Submission by the applicant with organisational structure chart made 8 March 2021.

   ·Submission from the applicant made 15 March 2021 (including organisational structure chart as at January 2020).

   ·Submission by the applicant concerning training benchmark matters 30 March 2021.

   ·

   Application must be compliant: r.5.19(3)(a)

10. R.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 section 245AR(1).

11. Based upon the application’s contents and departmental information, the Tribunal finds that the applicant made the application in accordance with the approved form.  The application for approval nominated Mr Alexander Rivera OMAR IBRAHIM for the nominated position of customer service manager

12. The application identified Mr OMAR IBRAHIM (nominee) who was a person holding a Subclass 457 visa granted by satisfying clause 457.223(4) to work in the position of the Café or Restaurant Manager ANZSCO code 141111. 

13. 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.

14. The Tribunal is satisfied that the occupation carried out by the nominee as the holder of a 457 visa corresponds with the nominated position.  As the nominated position is listed in ANZSCO under the occupational Unit Group of Café or restaurant manager ANZSCO 141111, the Tribunal finds that the requirements of r.5.19(3)(a)(i) and (iii)

    Standard business sponsor: r.5.19(3)(b)

15. The nominator was a standard business sponsor from 10 March 2015 to 10 March 2018. This applicant employed the nominee on and from 13 July 2013 and approved as a 457-visa holder from April 2015.

16. The applicant operates a restaurant business in Toowoomba and trades under the name ‘Encores’ within the Empire Theatre precinct in that city.  From the financial data provided by the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating its business in Australia.  The Tribunal is also satisfied that it was not granted its most recent business sponsorship based on meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

    The nominee: r.5.19(3)(c)

17. In the period of 3 years immediately before the nominator made the application, the nominee as the holder of the 457 visa as identified in r.5.19(3)(a)(ii) has held the 457 Visa for at least a total period of 2 years. Has been employed in that position (Café or restaurant manager) for at least 2 years not including any period of unpaid leave.

18. The nominee has been employed in the position of Café or restaurant manager on a full-time capacity and his employment has been undertaken in Australia.  He has been identified in his employer’s application as holding the occupation of Café or restaurant manager and it was the employer as nominator that nominated the occupation.

    Full-time employment for 2 years: r.5.19(3)(d) and (e)

19. The nominee will be employed on a full-time basis for the position for at least 2 years as is set out in his employment agreement.  The terms and conditions of the nominee’s employment will not include an express exclusion of the possibility extending the period of employment, again as prescribed in his employment contract.  The employment contract’s terms and conditions of employment are no less favourable than that are provided or would be provided to an Australian citizen or an Australian permanent resident performing equivalent work in the same workplace at the same location.

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

20. 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.

21. As the evidence relating to the applicant satisfying the training benchmark criteria was not complete, the Tribunal invited the applicant in writing to provide such information, documentation which would fulfil the evidence necessary to approve the training benchmark criteria.

22. The applicant was a standard business sponsor which was the subject of its approval on

23. The applicant provided the tribunal with a submission which is set out:

    ‘To whom it may concern

    During our appeals hearing on March 23rd, Member Ian Berry asked us to demonstrate that we had met the training benchmark.  In our response to this request, I outlined the details below.

    I have now also reattached the documents referred to in this detail, showing the percentage spent on training of the total payroll for each year of this process.

    Meeting the training benchmark (1% of the payroll of the business, and the provision of training to employees of the business, who are Australian Citizens or Australian workers.)

    The applicant has met this criteria by providing payments to cover the salary of Australian Employees engaged by the business as apprentices (Kitchen) and/or trainees (Front of house).

    In the documents provided to the Department in response to the request on 21 January 2021, the total payroll was provided for each year that Alex Ibrahim has been employed with the applicant.  The apprentices/trainees and their wages were also listed, demonstrating that in each year, the training benchmark was exceeded.

    Kind regards

    Mark Rawlings.

    ‘Case number: 1820923

    Applicant: Raw Ingredient Catering Company Pty Ltd ATF Rawlings Family Trust

    8. Information regarding applicant’s compliant with training commitments and sponsorship obligations.

    Approval number: 450577184 TRN: EG07YFIB55

    Nomination approval: 65577604 Nomination TRN: EGO7YFTDLD

    Training requirement met: The applicant employs Australian apprentices, which complies with the training commitment of the business. Below is a breakdown of the total payroll for each year, and the apprentice wage component. Actual documents can be supplied from our accounting program, Xero, but an overview may be more succinct.

    [

Total payroll - 2013/2014	$608,064.30
Apprenticewages:
CooperWeldon(Australianresident)	$2,513.72
EmilyColbran (Australian resident)	$19,042.75
Gurbinder Kaur (Australian resident)	$37,815.27
Jonathan Gilloway (Australian resident)	$43,618.42
Shannon Szkurda (Australian resident)	$19,317.32
Total training wages (20.12% OF PAYROLL)	$122,307.48

Total payroll - 2014/2015	$670,401.94
Apprenticewages:
CooperWeldon(Australianresident)	$2,513.72
EmilyColbran (Australian resident)	$19,042.75
Gurbinder Kaur (Australian resident)	$37,815.27
Jonathan Gilloway (Australian resident)	$43,618.42
Shannon Szkurda (Australian resident)	$19,317.32
Lachlan Jackson (Australian resident)	$4,684.91
FilBenedicto	$12,640.25

[8268070] General Submission

Case Number: 1820923 Created on 26/05/2021 14:24:17

Total training wages (20.83% of payroll) $139,632.64

Total Payroll 2015/2016	$944,879.61
ApprenticeWages:
DylanLehan(Australian resident)	$2,112.00
FilBenedicto (Australian resident)	$33,854.85
Total Training Wages (3.8% of payroll)	$35966.85

Total Payroll 2016/2017	$811,921.02
Apprenticewages:
Shantelle Watts (Australian resident)	$8,082.84
OliverBrown(Australianresident)	$535.20
KodyBuchan (Australian resident)	$258.86
FilBenedicto (Australian resident)	$39,862.46
Total Training Wages (6% of payroll)	$48739.36

TotalPayroll 2017/2018:	$768,990.90
Apprenticewages:
KodyBuchan (Australian resident)	$6,256.25
OliverBrown(Australianresident)	$30,934.64
Shantelle Watts (Australian resident)	$10,350.16
Total Training Wages (6.1% of payroll)	$47541.05

TotalPayroll 2018/2019:	$642,960.45
ApprenticeWages:
MiloResetti (Australianresident)	$38,203.75
Total Training Wages (5.9% of payroll)	$38,203.75

TotalPayroll 2019/2020: $609,666.83

Apprentice Wages

Andrew Garvin (Australian resident)	$18,431.46
David Lingwoodock (Australian resident)	$10,391.81
Zina Al Hauri (Australian resident)	$6,125.44
Total Training Wages (5.7% of payroll)	$34948.71

1. On 18 May 2021, the Tribunal invited the applicant to provide information relating to the Tribunal to better understand the position of the applicant satisfying the training benchmark.  This letter is set out in full:

   18 May 2021

   Mr Mark Andrew Rawlings

   Raw Ingredient Catering Company Pty Ltd ATF the Rawlings Family Trust Email: [email protected]

   Dear Mr Rawlings

   REQUEST FOR INFORMATION – RAW INGREDIENT CATERING COMPANY PTY LTD ATF THE RAWLINGS FAMILY TRUST

   I am writing in relation to the application for review made by Raw Ingredient Catering Company Pty Ltd ATF the Rawlings Family Trust in respect of a decision to refuse a business nomination application.

   You are requested to provide the following information:

   The training contracts (apprenticeship and traineeship) (see IMMI 17/074 a copy of which is attached) entered into between the applicant and each trainee or apprentice which contract commenced in the following sponsorship years:

   o 10 March 2015 – 10 March 2016;

   10 March 2016 – 10 March 2017; and

   o 10 March 2017 – 10 March 2018.

   In respect of each contract (apprenticeship and traineeship), referred to above, provide the following information:

   The full name of the apprentice or trainee;

   The citizenship/Visa status of each apprentice or trainee;

   The commencement and finalisation date of the apprentice or trainee’s contract;

   The course or qualification undertaken or completed by each apprentice or trainee;

   The gross wages earned by each apprentice or trainee in the relevant sponsorship year; The salary and wages expenditure incurred by the applicant in each sponsorship year.

   The contribution made by the applicant to the training benchmark A or B in each sponsorship year.

   Further information of contributions made toward the training benchmark A or B not previously referred to in this invitation.

   Please provide this information, in writing, by 1 June 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you are unable to provide the requested information by 1 June 2021, you should contact us before this date.

   If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

   Yours sincerely,

   For the Registrar’

2. The Tribunal’s letter attached to it the legislative instrument Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017, the applicable legislative instrument relevant to the applicant’s nomination application which was effective from 1 July 2017.

3. The Tribunal’s letter of invitation dated 23 May 2021, require the applicant to respond or comment upon the information by 1 June 2021. The applicant responded by providing evidence of the apprentice’s full name his or her residency status, when the apprenticeship commenced when his employment ceased the qualification in gross wages which rule detailed in the following table:

10 March 2015 – 10 March 2016

Apprenticeship information

Full name

LJ

Residency/Visa status

Australian resident

Apprenticeship commenced

23 June 2015

Apprenticeship to for completion

Apprentice left employment to continue apprenticeship elsewhere on 16 May 2016

Qualification

Cert III in Commercial Cookery

Gross wages for the above period

$28,055.70

Full name

FB

Residency/Visa status

Australian resident

Apprenticeship commenced

20 July 2015

Apprenticeship to be completed

July 2017

Appreciate cancelled

5 June 2017

Qualification

Cert. III in Commercial Cookery

Gross wages for specified period

$33,427.92

Salary/wages expenditure incurred in sponsorship year: $906,091.37

Contributions made to benchmark training B in sponsorship year (via a British wages): $61,483.62 (6.78%)

.  11 March 2016 – 10 March 2017

Apprenticeship information

Full name

LJ

Residency/Visa status

Australian resident

Apprenticeship commenced

23 June 2015

Employment status

Left employment to continue apprenticeship elsewhere: 16 May 2016

Completion date of apprenticeship

November 2017

Qualification

Cert III in Commercial Cookery

Gross wages for the above time

$8,098.53

Full name

FB

Residency/Visa status

Australian resident

Apprenticeship commenced

20 July 2015

Apprenticeship completion due

July 2017

Apprenticeship status

Cancelled 5 June 2017

Full name

DL

Residency/Visa status

Australian resident

Apprentice ship commenced

3 August 2016

Apprenticeship to for completion

September 2017

Qualification

Cert III in Commercial Cookery

Gross wages for the above time

$28,304.20

Salary/wages expenditure incurred in sponsorship year: $839,596.53

Contributions made to benchmark training B in sponsorship year (via apprentice wages): $72,083.35.  (8.59%)

11 March 2017 – 10 March 2018

Apprenticeship information

Full name

FB

Residency/Visa status

Australian resident

Apprenticeship commenced

20 July 2015

Apprenticeship due for completion

July 2017

Apprenticeship status

Cancelled 5 June 2017

Qualification

Cert III in Commercial Cookery

Gross wages for the above time

$14,673.00

Full name

DL

Residency/Visa status

Australian resident

Apprenticeship commenced

3 August 2016

Apprenticeship due to be completed

September 2017

Qualification

Cert III in Commercial Cookery

Full name

DB

Residency/Visa status

Australian resident

Apprenticeship commencement

29 November 2017

Apprenticeship do for completion

November 2020

Qualification

Cert. III in Commercial Cookery

Gross wages for specified.

$10,758.94

Full name

KB

Residency/visa status

Australian resident

Traineeship commenced

13 June 2017

Apprenticeship due to be completed

13 June 2019

Qualification

Certificate III in Hospitality

Gross wages for the specified period

$5,399.33

Full name

MR

Residency/Visa status

Australian resident

Apprenticeship commenced

21 March 2017

Apprenticeship due for completion

March 2020

Qualification

Cert. III in Commercial Cookery

Gross wages for specified period

$33,302.74

Full name

OB

Residency/Visa status

Australian resident

Apprenticeship commenced

20 June 2017

Apprenticeship to be completed

1 June 2020

Qualification

Cert. III in Commercial Cookery

Gross wages for specified period

$21,508.07

Full name

SW

Residency/Visa status

Australian resident

Apprentice ship commenced

4 April 2017

Apprenticeship due for completion

April 2020

Qualification

Cert. III in Commercial Cookery

Gross wages for the timeframe

$18,433.00

Salary/wages expenditure incurred in sponsorship year: $811,069.41

Contributions made to benchmark training B in sponsorship year (via apprentice wages): $130,577.92 (16.10%)

What is an Australian resident?

1. Either an apprenticeship or a traineeship can be awarded to any person living in Australia for so long as that person has a right to work.  Persons who may not be either Australian citizens or Australian permanent residents but who hold a temporary Visa allowing them the right to work in Australia (depending upon the Visa conditions) can be either an apprentice or trainee.

2. The Further Education and Training Act 2014 (QLD) has the legislative jurisdiction to govern apprenticeships and traineeships.  Section 15 of that Act requires the employers of trainees and apprentices must ensure that a training contract is signed.  Section 17(5)(e) provides that the training contract can only be registered where the apprentice or the trainee is not prohibited by law from undertaking paid employment.  An example of where an apprentice or trainee may not meet this requirement is where a person holds a visa that prohibits them from working in Australia.  Australian permanent residents do not have work conditions placed on the thesis so any prohibition would refer only to temporary Visa holders and that would depend on the conditions placed on that holder.

3. The applicant had the information at its disposal to ascertain the residency and/or Visa status of each apprentice.  For instance, the applicant could have obtained the Visa status through the online service of VEVO [2]check.

   [2] Visa Entitlement verification online check.

4. The tribunal has a discretion to consider whether the applicant has fulfilled the criteria concerning training benchmarks. In deciding this issue, the Tribunal considers the prospect of most apprentices and/or trainees being persons who hold visas with restrictions on employment as opposed to being Australian citizens, Australian permanent residents or Visa holders without any employment restrictions is, on balance, unlikely. Even so, the training benchmark contributions by this applicant is significant. There is a discretion under r.5.19(3)(f)(ii) to disregard r.5.19(3)(f)(i). The tribunal has considered that the substantial contribution made by this applicant taken into account the assessment of the apprentices and trainees having worked restrictions is highly unlikely, intends to exercise a discretion by disregarding r.5.19(3)(f)(i).

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

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

6. 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. 

7. The Tribunal has considered carefully all the material in the departmental file and from that there does not appear to be any information from which, in the course of the nomination process, about the applicant or any other relevant person having against it or them or others, any adverse information.

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

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

9. 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.

10. Before it, the Tribunal has no evidence of non-compliance of any Commonwealth and State laws (including Territories) relating to workplace relations. The applicant is within an industry group highly regulated and in the absence of any evidence, infers the applicant has a satisfactory record of compliance and that it satisfies r.5.19(3)(h)

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

    Genuine need to employ nominee: r.5.19(3)(i)

12. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

13. The applicant’s business has undergone changes.  It had open to other businesses in order to exploit opportunities that available.  Those other businesses are not now trading, and the applicant is concentrating on its core business Encore restaurant within the Empire Theatre precinct.  The organisational structure is consistent with the business it operates.  It is a major employer of the apprentices and trainees in the hospitality industry in Toowoomba.  Its  financial figures are consistent with its operations.

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

15. 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

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

    Ian Berry
    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.