Rionlon Pty Ltd (Migration)

Rionlon Pty Ltd (Migration) [2019] AATA 4565 (23 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Rionlon Pty Ltd
CASE NUMBER:  1711740
DIBP REFERENCE(S):  BCC2016/3532467
MEMBER:Amanda Ducrou
DATE:23 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 September 2019 at 10:38am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Advertising Specialist – training commitments and obligations – Training Benchmark B of IMMI 13/030 – online training courses – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 May 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 24 October 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i)(A) of the Regulations because the evidence did not establish that the applicant met either Training Benchmark A or Training Benchmark B during the period of the nominator’s most recent approval as a standard business sponsor. Further, the delegate found that it was not reasonable to disregard the applicant’s failure to meet those requirements under r.5.19(3)(f)(ii).
On 13 May 2019 the Tribunal wrote to the applicant in accordance with s.359(2) of the Migration Act 1958 (the Act) inviting the applicant to provide information to the Tribunal. The letter invited the applicant to provide information that demonstrated that all of the relevant criteria in r.5.19 of the Regulations were met currently including, but not limited to the criteria that the delegate had found were not established. Extracts of relevant parts of r.5.19 accompanied the letter. The letter asked the applicant to provide the information by 27 May 2019 and noted that the applicant could request an extension of time provided that any such request must be received before 27 May 2019. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant responded to the Tribunal’s request for information on 23 May 2019 and provided submissions and documents in support of the application.
Mr Paul Chiu for the applicant appeared before the Tribunal on 3 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hu. An interpreter in the Mandarin language assisted the Tribunal at the hearing. At the hearing, the Tribunal invited the applicant to provide further documentation relevant to the application. The Tribunal received documents from the applicant on 3 July 2019.
The applicant’s registered migration agent, Ms Karen Wong represented the applicant in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.
On the basis of the information in the Department’s file the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the fee prescribed in r.5.37. The relevant s.245AR(1) certification was also provided in the application form.
The application for approval identifies Ms Lixuan Hu as the nominee. According to the Department’s records, Ms Hu held a Subclass 457 visa granted on the basis of satisfying cl.457.223(4) at the time when the application was made.
The application for approval identifies the occupation of an Advertising Specialist (ANZSCO 225111). The Tribunal is satisfied, based on the employment documents for the nominee that the occupation identified in the application for approval is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is satisfied that this occupation carries the same 4-digit code (2251) as the occupation carried out by the nominee while she held the Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Department’s records confirm that the nominator was the standard business sponsor who last identified Ms Lixuan Hu in a nomination made under s.140GB of the Act. The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
The documents provided to the Tribunal included: an ASIC current and historical company extract for the applicant; the applicant’s financial statements for the 2018 financial year (which included the 2017 financial year information); the applicant’s company tax return for the 2018 financial year; activity statements lodged by the applicant with the Australian Taxation Office (ATO) for the 2016 to 2018 financial years; payroll information; and other information about the applicant’s business activities. The documentary evidence was consistent with the applicant actively and lawfully operating a business in Australia.
In his oral evidence, Mr Chiu described the nature of the applicant’s business and operations. The business was established in 2013. Mr Chiu is a director and the general manager of the business. Currently there are six employees, all of whom are full-time employees. Based on the documentary and oral evidence the Tribunal is satisfied that the nominator is actively and lawfully operating a wholesale trade business of supplying solar panels and mounting gear located at Huntingdale Road, Burwood, Victoria, Australia.
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 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.
In this case the relevant provision is r.5.19(3)(c)(i). This nomination application was made on 24 October 2016. The nominee was granted the Subclass 457 visa to work in the nominated occupation of Advertising Specialist on 8 August 2014.
The Tribunal was provided with: the nominee’s PAYG payment summaries for the 2015 to 2017 financial years; her notices of assessment issued by the ATO for the 2015 to 2017 financial years; her payslips issued by Rionlon Pty Ltd for the pay periods commencing on 1 October 2014 and ending on 28 October 2016; and bank transaction statements for her personal bank account for the period covered by the payslips.
The Tribunal was also provided with documents regarding the nominee’s position. The oral evidence that Mr Chiu and Ms Hu presented was consistent with the documentary evidence concerning the nominee’s qualifications and her duties and responsibilities in the position. Samples of work completed by the nominee were available to the Tribunal. The Tribunal is satisfied based on the documents and the oral evidence that the nominee commenced employment with the nominator as an Advertising Specialist on 1 October 2014 and that her employment with the nominator in that position has been continuing and is current. The Tribunal is satisfied that the nominee has been employed by the nominator in the position of Advertising Specialist on a full-time basis in Australia for at least 2 years in the 3 years immediately before the nomination application was made.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The nominee is a person to whom r.5.19(3)(c)(i) applies. The Tribunal was provided with the most recent employment agreement dated 1 September 2017 between the nominator and the nominee. The employment agreement provided for the nominee’s employment on a full-time basis for at least 2 years. It did not expressly exclude the possibility of extending the period of employment.
The Tribunal considered the evidence relating to the applicant’s financial capacity to employ the nominee for a period of at least 2 years. The employment agreement stipulated that the nominee’s salary was $68,640 per annum, plus superannuation at the current legislated rate. Mr Chiu and Ms Hu confirmed that Ms Hu is currently remunerated as provided in the employment agreement.
The Tribunal had regard to the financial statements, tax return and activity statements for the applicant. The Tribunal also had regard to the most recent letter of support from the applicant’s accountant dated 3 July 2019 attesting that the business has sufficient financial resources to meet the financial commitment of continuing the nominee’s full-time employment at an appropriate level of remuneration for at least the next 2 years.
The 2017 financial year profit and loss information showed an operating profit of $11,927. The 2018 financial year profit and loss statement showed an operating profit of $30,389. The gross sales for the 2017 financial year were $5,346 350. The gross sales for the 2018 financial year were $5,233,855. The letter from the accountant explained that the reduction in the operating profit for the 2017 financial year resulted from an inventory adjustment due to a product recall.
Mr Chiu gave oral evidence that the business changed direction from 2016. Prior to then it focused on the supply of solar panels and had fewer customers. Since 2016, the business has focused on the supply of racking. Racking has lower costs and a much higher profit margin. Racking also has lower storage requirements. This means that they have been able to increase the number of customers. Mr Chiu estimated that gross sales for the 2019 financial year would exceed $8 million. The activity statements lodged with the ATO for the first 11 months of the 2019 financial year showed gross sales of $8,546,901. The activity statements demonstrated that the total salary wages and other payments shown in the activity statements was commensurate with the wages and salaries expense shown in the 2018 profit and loss statement.
The Tribunal is satisfied based on the documentary and oral evidence that the applicant has the financial capacity to employ the nominee and that the applicant has the financial capacity to maintain the nominee’s employment for at least the next 2 years.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The terms and conditions of the employment agreement include terms relating to the nominee’s working hours, her annual salary and superannuation. The employment agreement provides that the nominee’s ordinary daily hours of full-time work are 7.6 hours per day (a maximum of 38 hours per week) with the possibility of the nominee being required to work reasonable additional hours. The employment agreement also provides that the nominee is entitled to 4 weeks annual leave per year of service, long service leave and personal (sick)/carer’s leave of up to 10 days for each year of continuous service. The annual leave and personal (sick)/carer’s leave is cumulative.
The evidence was consistent with the nominee’s current salary being $68,640 per annum plus superannuation at the applicable statutory rate. The application form noted that there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominated person. This was confirmed by the organisation chart provided by the nominee, the other documentary evidence and the oral evidence of Mr Chiu. The Tribunal considered that it was appropriate to have regard to relevant market information.
The applicant provided market research on the nominee’s salary including information compiled by Payscale.com and job vacancy advertisements. The Tribunal consulted a range of sources of information. The sources included the government’s Job Outlook website ( accessed September 2019) which indicates that median weekly before tax earnings for full-time non-managerial advertising specialists in Australia were $1,737 per week ($90,324) per annum:
>
The Payscale website ( report (accessed September 2019) did not contain a report for advertising specialists in Australia. However, a Payscale report for Account Executive (an alternative title for Advertising Specialist under ANZSCO 225111) provided an average salary for account executive, advertising in Australia of $51,042 per annum plus bonus of $3,500 and commission of $9,826 (total $64,386 per annum). According to the Payscale report, employees with Account Executive, Advertising in their job title in Melbourne, Victoria earn an average of 6.2% more than the national average (this equates with $68,359 per annum).[1]
[1] >
Given that the information from Job Outlook did not include a breakdown of the experience of the employees or the size and location of the employers it was not clear to the Tribunal whether this would apply to the nominated position or not. The information from Payscale related to employees in Melbourne, Victoria, Australia, which is where the nominee is employed. The information was consistent with the evidence the applicant provided.
The Tribunal is satisfied, based on the employment agreement, the documentary evidence the applicant provided and the information from Payscale that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the nominator’s business premises.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
At the time of the application the applicant was most recently approved as a standard business sponsor on 4 July 2014 for a period of 3 years until 4 July 2017. The delegate refused the application on the basis that there was insufficient evidence to demonstrate compliance with the training commitments and obligations in r.5.19(3)(f).
The applicant’s representative provided a letter dated 7 August 2017 from the Department notifying the applicant that an application for standard business sponsorship was approved on 7 August 2017. The Department’s records show that application was lodged on 29 June 2017. The applicant’s representative also provided a copy of the notice of decision by a delegate of the Department granting approval under r.2.63 from 7 August 2017 to 7 August 2022. The Tribunal finds that the applicant’s most recent sponsorship approval as a standard business sponsor was granted on 7 August 2017 for the period from 7 August 2017 to 7 August 2022.
The applicant’s representative provided material in relation to the fulfilment of the training requirements and training obligations in relation to the most recent sponsorship approval. The applicant submitted that it had complied with the training requirements under Training Benchmark B of IMMI 13/030. IMMI 13/030 provides that specified types of expenditure cannot count towards Training Benchmark B.
The Tribunal had before it a Payroll and Training Table that listed the applicant’s payroll for the sponsorship year from 7 August 2017 to 7 August 2018 as $450,120. To meet Training Benchmark B the applicant is required to provide evidence of recent expenditure of at least $4,501.20 (1% of the payroll of the business) in the provision of training to employees who are Australian citizens and Australian permanent residents.
The applicant provided extensive documentary evidence including: training plans from Ausskill Training Centre; payment receipts from Ausskill Training Centre; and ANZ Banking Group lodgement receipts for payments from the applicant to the Ausskill Training Centre. The documents demonstrated that the applicant made payments totalling $4,940 during the period from 7 August 2017 to 7 August 2018 from its account to the Ausskill Training Centre for online training courses. The training plans contained a summary of the training courses. The Tribunal is satisfied, based on the evidence that the expenditure on the online training courses is not expenditure that cannot count towards Training Benchmark B.
The training plans identified the employees of the business for whom the training courses were delivered. The organisation chart identified the employees as Australian citizens or Australian permanent residents. Mr Chiu confirmed that the employees are Australian citizens. Based on the documentary and oral evidence the Tribunal is satisfied that the online training courses were delivered to employees of the business who are Australian citizens or Australian permanent residents.

The Tribunal is satisfied that the applicant fulfilled the commitments made relating to the training requirements and complied with the applicable sponsorship obligations relating to the training requirements during its most recent period of approval as a sponsor.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no information before the Tribunal indicating that there is adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no information before the Tribunal indicating that the applicant does not have a satisfactory record of compliance with workplace relations laws in the location in which the applicant operates its business and employs employees in the business.
Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Amanda Ducrou
Member

ATTACHMENT – Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)    identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)    is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)     both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)    all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)     the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)    the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)    it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

[2019] AATA 4565

23 September 2019

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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