RELIABLE POST PTY LTD (Migration)

[2021] AATA 1889

RELIABLE POST PTY LTD (Migration) [2021] AATA 1889 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  RELIABLE POST PTY LTD

CASE NUMBER:  1815204

HOME AFFAIRS REFERENCE(S):          BCC2017/1924445

MEMBER:Susan Reece Jones

DATE:31 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2021 at 12:00pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training requirements – no evidence of expenditure for one year of most recent sponsorship period provided to department – no relevant visa holder employed during that year – new sponsorship approval period and change in requirements – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), rr 2.87B(2), 5.19(3)(f)

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 4 May 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 31 May 2017. The requirements for the approval of the nomination of a position of Contract Administrator (ANZSCO: 511111) 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)(f) of the Regulations because of a lack of evidence to demonstrate a contribution to an industry training fund as outlined with Training Benchmark A and the required training as outlined in Training Benchmark B has been provided for Australian and/or permanent resident employees of the business during each year.

5. The Tribunal received a review application on 24 May 2018. It was signed on behalf of the applicant by Mr Kittipoj Pinidthasen, the applicant’s director. The review application was accompanied by a copy of the delegate’s decision.

6. On 2 December 2020, the Tribunal wrote to the applicant pursuant to s359(2) of the Migration Act, inviting the applicant to provide further evidence in support of its case.

7. In response to the Tribunal’s s359(2) request, on 16 December 2020 the applicant’s representative, Mr Kanokwan Subhodyana of Immigration Success Australia Pty Ltd, provided the following documents:

   ·     Letter of Accountant from BAAS Bookkeeping and Accounting Services of Cronulla NSW, dated 15 May 2017  

   ·     ASIC Current and Historical extract dated 24 May 2017 and 15 December 2020

   ·     ABN details dated 15 December 2020

   ·     Evidence of previous Business name – Jim’s Cleaning (Seven Hills), now trading

   as Olay Masterclean

   ·     TAFE Sydney NSW payment 19 April 2016 $1500; 22 April 2015 $2,300 for

   ·     Training Benchmark B Leadership Stage 1 or 2, payment $1500

   ·     Employments Agreements dated 25 May 2017 (salary $62,000); 1 December 2020 (salary $66,000)

   ·     Financial Statements 2016, 2017  

   ·     Organisation Chart

   ·     Business Name Olay Masterclean dated 30 July 2015

   ·     Courier business details

   ·     Letter from BAAS Bookeeping and Accounting Service dated 10 December 2020 signed by Mr Y. Luekiattikul

   ·     Submission dated 1 March 2018 from Mr. Paul Gledhill, Dural, Manager Australia Post

   ·     Australian Post Mail Contractor Agreement dated 21 May 2010 for an initial term 5 years

   ·     Email dated 23 November  2020 from Mr Tran of  Australia Post (Senior Contract Consultant at Australian Post) regarding contract extension 2021

   ·     Agreement with Go Logistics dated 2018, 2019 

   ·     Olay Masterclean cleaning service

   ·     Sample invoices and agreements from Olay Masterclean (previously Jim’s

   Cleaning Seven Hills) for commercial customers: Turbo Auto Spare and Suhner
   Pty Ltd

   ·     ASIC Current & Historical Extract  

   ·     ATO Tax Returns: 2018, 2019

   ·     Business Activity Statements: July 2018 to September 2020

   ·     Financial Statements: 2018, 2019

   ·     Letter from Accountants dated 10 December 2020

   ·     Organisational Chart  

   ·     Roles and duties of the nominated position and Job description  

   ·     Work samples showing some of the daily tasks performed   

   ·     Agreement lists showing sample of agreements which have been negotiated, procured, administered and maintained by the nominee including:   

   o   Australia Post

   o   Go Logistics

   ·     Sample of completed cleaning service agreements  

   ·     Multiple emails relevant to Agreements with Australia Post and Go Logistics

   ·     Multiple emails relevant to Agreements for cleaning services of Olay Masterclean

   ·     PAYG payment summaries for 2015 to 2020

   ·     Nominee’s tax assessment notices for 2015 to 2019  

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. On behalf of the applicant, its director (who is also the nominee in this case), Mr Kittipoj Pinidthasen, appeared before the Tribunal on 12 March 2021 to give evidence and present arguments.

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

11. Following the hearing, on 12 March 2021, the applicant provided further evidence in support of its application; namely,     

    • ATO Tax return 2020
    • BAS 2109, 2020, 2021
    • Letter from Accountant dated 19 March 2021
    • Updated Organisation Chart
    • PAYG 2015- 2020
    • Superannuation payments 2019- 2020
    • PAYG and superannuation payments: 2019, 2020, 2021
    • Subcontractor payments 2019, 2020, 2021
    • Australia Post contracts: 3
    • Go Logistics 2 contracts
    • Commercial cleaning contracts: Turbo Auto Spare; Suhner Pty Ltd
    • Applicant vehicle registrations (2 vans / 1 motorcycle)                

12. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

14. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

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

16. Given the above findings, the requirement in r.5.19(3)(a) is met.

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

17. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

18. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Kittipoj Pinidthasen, and nominated him for a subclass 457 visa. The Tribunal is further satisfied that the company is not operating a business overseas.

19. The applicant provided evidence (set out at paragraph 6 above) to demonstrate that it owns and operates multiple businesses in Sydney, NSW, including a delivery business, a Jim’s cleaning franchise (since 2013) and an Olay Masterclean licence. In addition, the applicant provided multiple communications (emails and contracts) to demonstrate and prove that it undertakes activities on behalf of Australia Post and Go Logistics (refer paragraph 6 above).

20. Based on the documentary proof provided, it is evident to the Tribunal that the applicant has had and continues to have, a long-term relationship with Australia Post. This together with the applicant’s ongoing contacts with Go Logistics (Myer and David Jones deliveries), anchors the applicant’s business income.

21. The Tribunal was provided with a report showing the contracts negotiated by the nominee with Australia Post, including those which have expired, been renewed or are continuing.  The applicant also provided supporting emails from Mr Tuyet Tran, Senior Contract Consultant, NSW/ACT Mail Contracts Centre, Australia Post, Sydney West Letters Facility, Strathfield, NSW, confirming the work being undertaken by the applicant. The applicant also provided payment receipts for the work undertaken.

22. The Tribunal is in receipt of the applicant’s agreement with Go Logistics dated 2 October 2018, renewed on 3 June 2019 and continuing.  In addition, the applicant provided proof of payments to the applicant from Go Logistics for the work. The applicant provided proof of contracts negotiated by the nominee in relation to cleaning and Westpac Bank receipts showing payments for the work undertaken.

23. The applicant also provided vehicle registration documentation for its various vehicles.

24. The Tribunal is also in receipt of a number of submissions on behalf of the applicant including Australia Post. One submission dated 1 March 2018 from Mr. Paul Gledhill, Dural Manager, Australia Post, stated as follows:

    I am writing this letter in order to support KITTIPOJ PINIDTHASEN’s VISA application. I have been dealing with Reliable Post Pty. Ltd. through Kittipoj since April 2009.
    Reliable Post Pty. Ltd. has been one of authorised contractor companies that provide mail
    delivery services for Australia Post for almost 10 years. During the time, Reliable Post
    entered several tender processes held by Australia Post and secured a number of contracts
    for mail delivery services. The company has currently secured two contracts for the service
    areas of Galston, and Glenorie. Kittipoj is the director and contract administrator of the
    company who is responsible for ensuring that those contracts comply with Australia Post’s
    requirements. Also, he acts as a representative of the company in negotiating renewals and
    variations of the contracts. Based on the performance of the company, Australia Post has recently approved the company as a caretaker of the other mail delivery service in Kenthurst and Porter Road area which the company may have an opportunity to enter the tender process and to negotiate the contract of this service area in the near future.
    Kittipoj is a well-versed professional with a lot of experience. His many years in this field
    clearly enable him to make good decisions, manage and maintain outstanding performance
    of the company. In addition, he has very impressive interpersonal skills and can easily
    cooperate with the most diverse kinds of personalities.

25. At hearing the applicant director (and nominee) also explained to the Tribunal that if the applicant was successful with its nomination and the associated visa application was remitted to the Department, Australia Post has indicated that it will enter a long-term contract(s) with the applicant. Thenominee’s temporary visa status precludes that at present. Should this occur, the applicant stated to the Tribunal that it will invest in additional vehicles and engage further employees / subcontractors. Currently the applicant’s subcontractors use their own vehicles to undertake contractual work. 

26. The Tribunal’s analysis of the applicant’s financial evidence shows as follows:

$	2017	2018	2019	2020
Total income	258,164	233,459	274,865	429,957*
Total assets	83,645	99,535	146,126	163,424
Total liabilities	43,934	34,872	31,522	61,176

·Includes $10,000 Government Industry Payment: ATO cashflow boost for COVD-19

1. The applicant’s recent BAS indicates as follows:

2020/ 2021	Sales / income $	Salaries $
January – March 2020	97,116	35,540
April -June 2020*	108,945	25,820
July-September  2020	115,891	30,660
October – December  2020	110,160	32,760

·COVID-19 lockdown, Sydney

1. The Tribunal notes that the applicant has maintained its business performance and has in fact been a beneficiary of COVID-19 over the past year given the rapid transition to online shopping by consumers. 

2. In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence (as noted above and at paragraph 6), of its current ASIC and ABN registration and its Financial Statements and BAS, and the multiple contracts with key customers (as referred to above), which show that it is actively and lawfully operating a business in Australia.

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

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

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

   ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

   ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

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

   ·the nomination was made on 31 May 2017 for the position of Contract Administrator ANZSCO 511111;

   ·the relevant 3-year period is therefore 31 May 2014 to 31 May 2017;

   ·the nominee was initially employed by the applicant, who is also the nominee, on 1 August 2014 while the holder of a 457 visa;

   ·the nominee applied for a subclass 457 visa on 5 June 2014 on the basis of his nomination by the applicant and was granted a Bridging visa A on that date;

   ·he was granted a subclass 457 visa on 1 August 2014, which was valid until 1 August 2018; and

   ·he had therefore worked for the applicant in the nominated position for approximately 2.9 years prior to the nomination, and for 2.9 years in the 3-year period immediately prior to the nomination application being lodged.

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

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

7. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

8. The identified occupation in the application is Contract Administrator (ANZSCO: 511111). The most recent signed Employment Agreement in respect of the nominee dated 1 December 2020, states that the applicant will provide full time employment for the nominee for period of 2 years on terms that do not expressly preclude the possibility of an extension. The contract states that the nominee’s salary will be $66,000 plus superannuation and that he will be employed on a full-time basis for at least 2 years.

9. Submitted with this application were the nominee’s employment contract, the nominee’s PAYG payment summaries 2015 to 2020, and his ATO tax assessment notices 2015 to 2019 (2020 not yet completed).

10. The Tribunal was provided with a submission from BAAS Bookeeping and Accounting Service dated 19 March 2021 (signed by Y. Luekiattikul, Accountant) confirming that the turnover for financial year 2020 was $430,000 (57% growth on the previous year) and that the applicant’s business has the financial capacity to meet the salary payments of the nominee for at least 2 years.

11. The applicant’s most recent (March 2021) Organisation Chart shows the applicant engages (including subcontracting with) 9 employees besides the nominee, 7 of whom are Australian citizens or Permanent Residents. 1 employee is a student.

12. Given the additional material provided to the Tribunal, and its ability to review the ongoing operations of the applicant since the delegate’s decision, the Tribunal is satisfied that it has the financial capacity to continue to employ the nominee on a full-time basis for at least 2 years.

13. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

14. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

15. According to the applicant’s Organisation Chart and the oral evidence given  at hearing, there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

16. The applicant submitted evidence to demonstrate that the nominee’s salary is consistent with market rate information, including similar job vacancies indicating that salary range for Contract Administrators in Sydney is between $65,000 - $85,000, salary surveys from PayScale for a Contract Administrator in Australia showing the range is between $49,000 - $99,000, and slightly higher in Sydney which is between $50,000 – $100,000.  

17. Noting that the applicant’s most recent signed Employment Agreement with the nominee  dated 1 December 2020 provides for a salary of $66,000(plus superannuation), the nominee’s PAYG summary history shows as follows:

    Employee PAYG Summary

$	2015	2016	2017	2018	2019	2020
PAYG	55,166	58,000	58,333	60,000	60,000	56,001*

·Reduced due to COVID-19 circumstances.

1. The applicant provided the Tribunal with the following evidence in support of payments made to employees, including:

   • PAYG statements for employees entitled to superannuation for 2019, 2020

   ·proof of superannuation payments made to relevant employees (Quicksuper)

   ·statements of payments made to subcontractors and student employee 2018, 2019, 2020 and July 2020 -March 2021

   ·applicant Bank Statements (Westpac) with corresponding payments to employees.

2. The applicant also advised the Tribunal that the nominee’s salary has been increased over some years from $58,000 to $60,000 and is currently $66,000. Due to the uncertainty during the peak of the COVID‐19 pandemic, lockdowns and restrictions, the Tribunal was advised that the nominee (also being the director of the business), reduced his salary between April and June 2020 to ensure that the business could continue to employ and pay other employees and subcontractors. The Tribunal accepts the applicant’s submission that such a decision was entirely justifiable in the circumstances. 

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

   • the Payscale website (accessed 21 May 2021) indicates that a Contract Administrator in Australia earns an average salary of $66,803 plus superannuation:

   Contract_ Administrator/Salary

   • advertisements for experienced Contract Administrator positions in Sydney                listed on Seek.com.au as at 21 May 2021 where a salary range is given from $29 per hour to $75,000 to $84,999:

   contract-administrator-jobs

2. From the above, the Tribunal notes that although there was no equivalent role where the salary was stated on Seek on the date that the Tribunal reviewed Contract Administrator vacancies in Sydney, the Payscale salary range indication concurs or aligns with the salary being paid to the nominee.

3. The Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid noting that the nominee is also the owner and director of the applicant business.

4. The Tribunal is further satisfied that the contract of employment dated 1 December 2020 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

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

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

6. 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.

7. The most recent Standard Business Sponsorship for the applicant commenced initially on  22 April 2013 to 22 April 2016 and more recently for the period 2 September 2019 to 2 September 2024.

8. Specifically, the training requirements applicable for an established business with approval as a standard business sponsor in that period are set out in written instrument IMMI 13/030 as follows:

   • A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same or related industry of the business; or
   • B) recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

   55.      IMMI 13/030 provides that expenditure that can count towards Training Benchmark B includes:

   • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
   • funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
   • employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
   • employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
   • evidence of payment of external providers to deliver training for Australian

   employees

   • on-the-job training that is structured with a timeframe and clearly identified

   increase in the skills at each stage, and demonstrating:

   • the learning outcomes of the employee at each stage;
   • how the progress of the employee will be monitored and assessed;
   • how the program will provide additional and enhanced skills;
   • the use of qualified trainers to develop the program and set

   assessments; and

   • the number of people participating and their skill/occupation

   56.      The Department in its decision found that the applicant provided the Department with various documents related or connected to Training Benchmark A and B expenditure in 2015, 2016 and 2017. In order to meet the training requirements the applicant is required to demonstrate that they continue to meet the training requirements, required for the purpose of their most recent approval as a standard business sponsor under the subclass 457 program, in each fiscal year throughout the validity of their sponsorship or it is reasonable to disregard the training requirement.

   57.      The Department found that the applicant only provided evidence of training expenditure for the second and third year of the sponsorship approval period. No evidence of training expenditure is provided for the first year between 22/04/2013 to 22/04/2014 of the sponsorship approval period. Accordingly, the Department found that the applicant had not demonstrated that it had met the training requirements for each year of the sponsorship period.

   58.      The Tribunal notes that the applicant was most recently approved as a standard business sponsor on 2 September 2019 for a period of five years. The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant and hence, the sponsorship obligation to provide training does not apply in this case.  

   59.      That said, the applicant advised the Tribunal as follows in relation to the Department’s decision and each of the SBS years from 2014 to 2017: 

Year	457 Visa holder status	Payroll expenditure	Training Benchmarks expenditure
1st SBS year: Apr 2013 –Apr 2014	No 457-visa holder employed by the applicant	Nil	No training expenditure
2nd SBS year: Apr 2014 –April 2015	April: 2015: nominee commenced as a 457-visa holder (1 August 2014)	$113,282	Training Benchmark A payment: $2,300
3rd SBS year: Apr 2015 – Apr 2016	The nominee as a 457visa holder	$121,974	Training Benchmark B Payment: $1,500
Employee/Trainee Jeffery Stewart (Australian citizen) -    Birth Certificate and PAYG payment summaries 2016 and 2017 provided.

60.      Regulation r.2.87B(2) states that in relation to the obligation to provide training:

(2) If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a
standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period. “

61.      Department policy states in relation to r2.87B that:

The training obligation (regulation 2.87B) requires Australian business sponsors to meet the training benchmarks for each year in which they had had a 457-holder working for them for all or part of that year, for a total period of three years (or six years if they have been afforded Accredited Status).

62.      The Department policy guidelines as set out in its Procedures Advice Manual (PAM3) provide the following examples:

An Australian business is approved as a standard business sponsor for 3years on 24 May 2013. On 5 July 2013, a UC-457 visa was approved for their nominated employee for a period of 12 months. For the period of 24 May 2013 to 23 May 2014 and 24 May 2014 to 23 May 2015 the approved standard business sponsor must demonstrate expenditure against Training Benchmark A or B. If the approved standard business sponsor is not approved to sponsor any more UC-457 visa holders for the remainder of their standard business sponsorship they are not required to meet the training benchmarks for the final year 24 May 2015 to 23 May 2016.

A business is approved as a standard business sponsor on 25 March 2014 for a period of three years. The business employs one subclass 457 sponsored person who commences employment on 1 April 2014 and ceases on 12 February 2015. The sponsor does not employ another subclass 457 sponsored person until 6 September 2016.

In this example, the sponsor is required to meet the training requirements in year one and three of their approval. This is because they did not employ any subclass 457 sponsored persons in the assessment period between 25 March 2015 and 24 March 2016.

63.      In accordance with r.2.87B(2), the applicant submitted that the applicant was not required to incur training expenditure for the 1st SBS year (between 22 April 2013 – 22 April 2014) as there was no Subclass 457 visa holder working for the applicant during such period.

64.      The applicant provided detailed evidence including payroll, training invoices, training objectives, training certificates issued to the applicant’s Australian employee, the trainee’s Birth Certificate (NSW) and PAYG payment summaries for 2016 and 2017, confirming that he is an Australian citizen and was employed by the applicant at the time of training.

65. Based on the above information, the applicant submitted to the Tribunal that obligation to provide training under r.2.87B had been complied with in accordance with r.5.19(3)(f).

66.      The applicant provided the Tribunal with the above noted evidence of the applicant’s compliance with the Training Benchmark provisions and noting that the applicant’s current SBS is on foot until 2 September 2024, the Tribunal is satisfied that the applicant meets the obligations required under the Training Benchmark provisions.

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

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

68.      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. 

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

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

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

71.      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.

72.      There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or New South Wales by the applicant.

73. Accordingly, the Tribunal finds that the requirements of r.5.19(3)(h) are met.

74. 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

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

Susan Reece Jones
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

(2)The application must:

(a)be made in accordance with approved form 1395…; and

(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

(b)be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination

(3)The Minister must, in writing, approve a nomination if:

(a)the application for approval:

(i)     is made in accordance with subregulation (2); and

(ii)     identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

(iii)     identifies an occupation, in relation to the position, that:

(A)is listed in ANZSCO; and

(B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

(b)the nominator:

(i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

(ii)     is actively and lawfully operating a business in Australia; and

(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

(c)either:

(i)     both of the following apply:

(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has: 

(I)held one or more Subclass 457 visas for a total period of at least 2 years; and

(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

(B)the employment in the position has been full-time, and undertaken in Australia; or

(ii)     all of the following apply:

(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

(B)the nominator nominated the occupation;

(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

(d)for a person to whom subparagraph (c)(i) applies:

(i)     the person will be employed on a full-time basis in the position for at least 2 years; and

(ii)     the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i)are provided; or

(ii)would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f)either:

(i)     the nominator:

(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

(ii)     it is reasonable to disregard subparagraph (i); and

Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

(g)either:

(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)     it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.