Sardana Family Trust & K Sharma & Y Shelli (Migration)

Sardana Family Trust & K Sharma & Y Shelli (Migration) [2023] AATA 3690 (11 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sardana Family Trust & K Sharma & Y Shelli
REPRESENTATIVE:  Mr Nishant Malik (MARN: 0640566)
CASE NUMBER:  1919799
HOME AFFAIRS REFERENCE(S):          BCC2017/2203893
MEMBER:Ian Berry
DATE:11 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 11 October 2023 at 2:28pm
CATCHWORDS
MIGRATION – nomination – training benchmark criteria not met– Tribunal does not accept the certificates of genuine- course is irrelevant to the position of kitchen hand which is neither a Cook nor chef – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, r 5.19
CASES
MIEA v Guo & Anor [1997] 191 CLR 559
Nagalingam v MIEA [1992] 38 FCR 191
Prasad v MIEA [1985] 6 FCR 155
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 1 July 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 22 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(3)(f)(i)(A) of the Regulations because the applicant did not satisfy the training benchmark criteria.
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 reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Training commitments and obligations: reg 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 applicants most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
What is the law concerning benchmarks?
Regulation 5.19(3)(f)(i) requires the applicant to comply with the training benchmarks which are set out in IMMI 30/030. This instrument provides for benckmark B:
‘SCHEDULE A
Training Benchmarks
The business is not required to demonstrate that they are an industry leader in training.
The business is required to show that the training has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related the purpose of the business.
The training benchmarks for an established business are:
A)…
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.…’
The applicable law refers to IMMI 13/030 commenced on 1 July 2013 and extended to 30 June 2017. It therefore applies to this nomination. Recent expenditure refers to the payroll expenditure by the applicant prior to the 22 June 2017 nomination. One such obligation is on the applicant to provide evidence of payment to external providers to deliver training for Australian employees, including Australian citizens and Australian permanent residents (Australians).
Except for the initial payment to Restaurant & Catering NAT (benchmark A expenditure), the applicant used an external trainer in providing training courses to the applicant’s staff which relates to the applicant’s business. Training benchmark criteria includes the following information in satisfying the benchmark B criteria:
·The applicant has been approved as a sponsor for the sponsorship period.
·Providing the applicant’s payroll expense for each year in the sponsorship period.
·Relating to the sponsorship period, the name of the applicant’s employee who was identified as its nominee in the nomination.
·If the applicant has another nominee commencing employment then information on the commencement of employment of that nominee. Information should include:
oThe name of the nominee/s.
oThat employee’s visa details including that employee’s nomination or visa approval.
oProof on commencement of employment which may include the employees PAYG (or equivalent) lodged with the ATO, the employee’s relevant payslip.
·If the applicant is relying on the training expenditure paid to an external provider then the following information be provided:
oThe tax invoice and receipts about the amount to be paid and paid; the date of the training, the Australian employee/s who attended the training.
oThe proof of payment of the invoice to the external provider.
oThe name of the course and the relevance of the course to the applicant’s business operations.
oHow the course was delivered to the course participants. For example, how delivered by the trainer or one of its employees to the applicant’s Australian employees, whether in person, by the internet.
oThe date or dates the course was delivered to the Australian employees.
oThe Australian employee who participated in the training course, including:
§The name of the Australian.
§Proof of status of the Australian’s citizenship or permanent residency relevant to the date or dates of training.
oProof of payment of the invoice of the external training provider. It may include a copy of the applicant’s bank statement showing payment to that provider.
What was the sponsorship period?
The applicant’s sponsorship commenced on 24 January 2014 and concluded on 24 January 2017, a period of three years. The applicant submission[1] confirmed the nominee commenced employment in December 2014. During the hearing, the applicant’s partnership representative Mr Sardana (who said was authorised to speak on behalf of the partnership) in response to a question said the nominee commenced employment on 23 March 2014. Also was asked when the nominee was granted her UC-457 visa. He did not know.
[1] Migration representative's letter dated 28 March 2022, the penultimate paragraph on page 2.
However, the obligation for the applicant to account for the training benchmark contribution commenced in the first year of the sponsorship 24 January 2014.
The contributions required to be paid for the training of the applicant’s Australian citizens and permanent residents (Australians) is 1%[2] of its payroll in the sponsorship years[3], commencing in the sponsorship year in which the applicant’s nominee was employed.
[2] The applicant engaged in external trainer except for expenditure with Restaurant & Catering NAT.
[3] 24 January 2014 – 23 January 2015, 24 January 2015 – 23 January 2016, 24 January 2016 – 23 January 2017
The applicant provided financial statements for the fiscal years ending 30 June 2015, 2016 and 2017. Adopting those years payroll expenses, the Tribunal ascertained the following:

Year

Gross payroll

Contribution

30 June 2015

43,358

433.58

30 June 2016

125,819

1258.19

30 June 2017

104,004

1040.04

Total

2,731.81

What were the applicant’s training benchmark A and B expenses

The applicant engaged Reach for Training Pty Ltd , which provided all the training as detailed in the following invoices under each of the years.
24 January 2013 – 23 January 2014.
·Tax invoice 112714 dated 7 November 2013, for $1,095, from Restaurant & Catering NAT: contribution to the industry training fund. No evidence as to where the relevant organisation been approved to accept industry training fund contributions. The Tribunal has not considered the payment as coming within the training benchmark A criterion.
24 January 2014 – 23 January 2015.
·Tax invoice 4100, dated 24 November 2014 for $300, from Reach for Training Pty Ltd for the course ‘participate in safe work practices’. No evidence of payment by the applicant to the external provider was provided.
24 January 2015 – 23 January 2016.
·Tax invoice numbered 4227 dated 20 December 2015 for $1,300.00 from Reach for Training Pty Ltd: In the description states 457 - Temporary Hospitality Visa Training Benchmark B. SITTXINV002 - ‘Maintain quality of perishable supplies. There is no evidence of the proof of payment other than the invoice stating, ‘PAID TODAY $1,300.00’.
24 January 2016 – 23 January 2017.
·Tax invoice numbered 4287 dated 2 December 2016 for $1,600, from Reach for Training Pty Ltd. The description provided by the tax invoice is 457 - Temporary Hospitality Visa Training Benchmark 2. SITHCCC?[4] for ‘Prepare dishes using basic method of cookery’. There is no evidence of the proof of payment other than the invoice stating, ‘PAID TODAY $1,600.00’.
[4] The tax invoice was illegible in part and unreadable.
·Tax Invoice Numbered 4301 dated 8 March 2017 for $1,400, from Reach for Training Pty Ltd. this invoice refers to 457-Temporary Hospitality Visa training Benchmark B and refers to the course ‘clean premises and equipment’. The invoice does not provide any notation as to when and where the course was undertaken and as to the person or persons who attended the course. There is no evidence of the proof of payment other than the invoice stating, ‘PAID TODAY $1,400.00’. The applicant has not provided any evidence of it having been paid.
24 January 2017 – 23 January 2018.
·No evidence of contributions during this period.
24 May 2018 – 23 May 2018.
·Tax invoice numbered 4333 dated 6 March 2018 for $1,100, from Reach for Training Pty Ltd: the course was entitled ‘shows social and cultural sensitivity’.
Requests for more information on training benchmarks.
On 2 May 2019, the Minister requested information from the applicant to provide evidence of its meeting the training benchmarks for nominations made in the Temporary Residence Transition stream.
The Minister provided the applicant with information which would assist in compiling information relevant to that criterion:
Evidence of meeting the training benchmarks for nominations made in the Temporary
Residence Transition stream
The nominator must demonstrate that they continued to meet the training requirement, required for the purpose of their most recent approval as a standard business sponsor under the subclass 457 program, in each year throughout the validity of their sponsorship, or that it is reasonable to disregard the training requirement. You have not provided any evidence of training in the first year of the sponsorship.
Two options are available for providing this information:
a) evidence of expenditure by the business/organisation, to the equivalent of at least 2% of the payroll of the business/organisation, in payments allocated to an industry training fund that operates in the same industry as the business/organisation, for each year throughout the validity of their sponsorship, or
b) evidence of expenditure, by the business/organisation, to the equivalent of at least 1% of the payroll of the business/organisation, in the provision of training to employees of the business/organisation, for each year throughout the validity of their sponsorship.
Expenditure that can count towards this benchmark includes:
●paying for a formal course of study for the business/organisation’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/organisation’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/organisation
●employment of a person who trains the business/organisation’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
This on-the-job training that is structured with a timeframe and clearly identified increase in
the skills at each stage, and demonstrating:
o   the learning outcomes of the employee at each stage
o   how the progress of the employee will be monitored and assessed
o   how the program will provide additional and enhanced skills
o   the use of qualified trainers to develop the program and set assessments
o   the number of people participating and their skill/occupation.
The applicant responds specifically to the delegate’s statement detailed above: –
‘1.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.
2.The applicant was most recently approved as a standard business sponsor on 24 January 2014 for three years.
3.It should be noted that to have met the training requirements in benchmark B, which can be met through the expenditure of at least 1% of the business payroll on training it’s Australian employees, the applicant provided tax invoices/receipts issued to the applicant by Reach for Training Pty Ltd dated 24 November 2014, 20 December 2015, 2 December 2016, 8 March 2017 and 6 March 2018 for the following amounts $300, $1300 and $6000 respectively, noting that the expenditure is for the 457 – Temporary Visa (Hospitality) Training Benchmark B.
4.The applicant’s SBS has been approved for three years i.e., from 24/01/2014 to 24/01/2017.
5.The Delegate has raised his concerns for the training expenses (Invoice dated 08/03/2017 for AUD 1400) incurred after the Sponsorship expiry date which is 24/01/2017.
6.Assuming that the invoice and the amount under discussion does not match in the corresponding profit and loss statement, there needs to be evidence of intent which should show that there has been a reason as to why the applicant should have shown the above stated invoice/receipt along with supporting material while lodging Nomination Application with DOHA.
7.It should be noted that the applicant did not commence employing a 457-visa holder until December 2014 (Diksh Lakhi sponsored as a Cook under 457) and the training commitment and obligations were therefore only required to be satisfied for each 12 month period during which they employed an overseas worker.
8.The Profit and Loss Statement under discussion shows the total wages as $104,004 and training expenses as AUD 1811.
9.The Training Invoice/Receipt dated 02/12/2016 with reference to applicant’s commitment toward training benchmark B shows the expenditure of AUD 1600 which is more than the expenditure of at least 1% of the business’ payroll on training it’s Australian employees.
10.We believe that there has been no wrong intention but an accounting error which resulted in the situation under discussion. Assuming that if the applicant hasn’t provided Receipt/Invoice #4301 then it would have made no difference in proving the entity’s commitment towards regulation 5.19(3)(f)(i) as the expenses incurred towards training has exceeded 1% of the payroll.
The expenditure on the various hospitality courses was to provide training to the kitchen hand Mr Parminder Singh, to up skill him. We have attached PAYG statements, payslips and Australian passport for Mr Parminder Singh, in respect of the courses he undertook with Reach for Training on 21 and 22 December 2015 and 2 and 3 December 2016.’
Other than for the representatives statement no information has been provided as to how the training was delivered to Mr Singh. For example, whether it was by Internet, telephone or in person. Mr Singh was a kitchenhand who a casual employee. That evidence was in the payslips provided by the applicant.
Those payslips were for the weeks of 1 August 2015 – 7 August 2015; 8 August 2015 – 14 August 2015; 15 August 2015 – 21 August 2015; 22 August 2015 – 28 August 2015; 14 November 2016 – 20 November 2016; 21 November 2016 – 27 November 2016; 28 November 2016 – 4 December 2016; 5 December 2016 – 11 December 2016; 20 February 2017 – 26 February 2017 and 12 June 2017 – 18 June 2017.
Reach for Training Pty Ltd did not provide independent evidence as to the training details. The applicant submitted the courses were held on 21 December 2015, 22 December 2015, 2 December 2016 and 3 December 2016. There is no evidence from Reach for Training Pty Ltd either in a report or in the invoice given to the applicant where the courses were held, the attendee/s or the course delivery method.
The Tribunal also invited the applicant to provide the Tribunal with information about the training benchmark information.
Section 359(2) Invitational letter to the applicant concerning information on Training benchmark compliance
On 26 July 2022, the Tribunal invited the applicant to provide information relating to the nomination application and in particular
‘8Information about the applicant’s compliance with training commitments and sponsorship obligations;
Information regarding the most recent period of approval as a standard business sponsor (i.e., Notification of sponsorship approval).
Information, together with independent supporting evidence, to demonstrate that the applicant met the training requirements for each year of most recent approval as a standard business sponsor. For example, information about the applicant’s payroll for each year of the most recent approval as a standard business sponsor, payments made to an industry training fund, receipts of payment to training organisations and details of the employees that received the training, including evidence of the employee’s employment and immigration status at the time they received the training.’
The applicant provided the following further information relevant to its compliance with the training benchmark criteria:
BAS[5] – July 2021, August 2021, September 2021, October 2021, November 2021, December 2021, February 2022, January 2022, March 2022, April 2022, May 2022, and June 2022.
Financial reports for 2020, 2022
Partnership Tax Return 2019, 2020, 2021
Tax invoice 4333 dated 6 March 2018 from Reach for Training Pty Ltd, stating balance due $1,100.
Tax invoice for 4333 dated 6 March 2018 from Reach for Training Pty Ltd stating the balance owing nil.
Tax invoice for 4301 dated 8 March 2017 from Reach for Training Pty Ltd showing balance nil.
Tax invoice for 4301 dated 8 March 2017 from Reach for Training Pty Ltd showing a balance of $1,400.
[5] Business Activity Statements.
Tax invoice for 4301 dated 8 March 2017 from Reach for Training Pty Ltd showing a balance of nil.
Tax invoice numbered 4227 dated 20 December 2015 for $1,300 marked as paid.
Tax invoice numbered 4287 dated 2 December 2016 for $1600 marked as paid
Tax invoice from Restaurant & Catering NAT dated 7 November 2013 (invoice numbered 112714. With a ‘paid stamp dated 7 November 2013 by ‘FFT’.
Tax invoice numbered 4100 dated 24 November 2014 for $300 marked as balance due – nil.
Australian Taxation Office (ATO) 2013/14, 2014/15, 2015/16 partnership summary.
Organisational chart undated showing employees.
PAYG payment summary for employee Mr Parminder Singh for the year 2016.
Passport of Mr P Singh.
Payslips of Mr P Singh Saini for the period 1 August 2015 – 7 August 2015, 8 August 2015 – 14 August 2015, 15 August 2015 – 21 August 2015, 22 August 2015 – 28 August 2015.
Applicant’s submission dated 28 February 2023 relating to the salary of the position of Café or restaurant manager and the amount being paid to the nominee.
Applicant’s submission dated 1 March 2022 relating to training commitments and obligations.
Section 359A invitation to provide the Tribunal with further response or comment

On 13 March 2023, the Tribunal sought the applicant’s comment or response concerning compliance with the training benchmark. The comment or response by the applicant included the following:
‘8.Further, in the applicant satisfying the criterion of training benchmarks, the following should be given to the Tribunal to ascertain compliance with the criterion:
(a)   The tax invoices do not disclose payment by independent evidence;
(b)   The Australian citizens or permanent residents who undertook the course or courses;
(c)   The courses content showing the relevance of the course to the applicant’s business;
(d)   Proof of the persons employed when the courses were undertaken.
(e)   Proof of the permanent residency of the citizenship of the course trainees;
(f)    The relevant payroll for each year of the sponsorship and the calculation of either 1% or 2% whichever is claimed.
The applicant provided the Tribunal with the following further information in response to the section 359A letter:
·BAS monthly statements from February 2015 – December 2016.
·Nomination and visa grant with respect to Mr D Lakhi.
·Information previously provided.
·Though undated, the applicant provided its organisation chart relevant to the time of the nomination. At the highest hierarchical level Mr Shelli was the chef and an Australian. At the second level, the nominee was employed as the restaurant manager and Mr Maggu was a part-time cook. At the third level, it employed Mr Sardana as an all-rounder and employed part-time, Mrs Kiran Shelli a waiter and an Australian employed part-time, Gurkamal a waiter and employed part-time who is noted as having left in the employment, Vikram Shelli a casual cook and an Australian. Mr Govinder Singh a part-time tandoori cook who has since left. Ms Jazmin Samaira a kitchen hand and a citizen.
·PAYG payment summary for the year ending 30 June 2025 stating that the nominee was employed from 23 March 2015 to 28 June 2015.
·In submission dated 1 March 2022, the applicant provided to the Tribunal details of the tax invoices by the training provider Reach for Training Pty Ltd consisting of the following:
This submission refers specifically to the Minister’s delegate’s comments in the decision: ‘the nominator has provided a range of documentations to the Department in support of the application, including the following documents which were assessed against the training requirements outlined in regulation 5.19(3)(f)(i)(A):
·Invoice 4333 dated 6 March 2018 for $1100 described as 457 Temporary Hospitality Visa Benchmark B: Course ‘show social & cultural sensitivity’. The invoice is shown as not paid.
·Invoice 4301 dated 8 March 2017 for $1400 described as 457 Temporary Hospitality Visa Benchmark B: course ‘clean premises & equipment’. The invoice shows that the tax invoice was paid without evidence of how and when the payment was made.
·Invoice 4287 dated 2 December 2016 for $1600 Described As 457 Temporary Hospitality visa Benchmark B: Course ‘prepare dishes using basic method of cookery. The invoice shows that the tax invoice was paid without evidence of how and when the payment was made.
·Invoice 4227 dated 20 December 2015 for $1300 described as 457 Temporary Hospitality Visa Benchmark B: Course ‘participate in safe work practices’. The invoice shows that the amount paid that day was $1300.
·Invoice 4100 dated 24 November 2014 four $300 described as 457 Temporary Hospitality visa Benchmark B: Course ‘participate in safe work practices’ the invoice shows the invoice was paid on the above date for the amount of $300.
·Invoice/letter from Restaurant & Catering NAT Numbered 112714 Dated 7 November 2013 Four $1095. The Letter/Invoice had stamped on it ‘Paid’ with the initials ‘FFT’. It referred to a contribution to an industry training fund.
The information provided appear to indicate that the nominator has made an expenditure of $3200 towards training benchmark B between 24 January 2014 and 24 January 2017. According to the same information, it appears that the nominator has also spent at least $3000 in the financial year of 2017.
In considering these training invoices, I have also referred to the profit and loss statement for the financial year ended June 2017, which shows the total expenditure on training was only $1811. The amount of training expenditure shown on the financial statement is therefore inconsistent with the figure indicated on the training invoices. ‘There are therefore serious concerns in relation to the veracity of the invoices submitted for the purpose of satisfying the benchmark B’.
There are therefore serious concerns in relation to the veracity of the invoices submitted for the purpose of satisfying training benchmark B.’
The issues arising from this information is the relevance of the courses to a kitchen hand, the courses he attended, whether Mr Singh attended the course while at work. If one of the courses was held on 21 and 22 December 2015 then the only relevant course would have been relevant to the invoice 4227, dated 20 December 2015 for $1,300. The course ‘participate in safe work practices’ is relevant to the kitchen hand’s employment. However, there is no evidence provided stating that tax invoice has been paid other than a notation on the invoice.
The applicant states that a course was undertaken on 2 and 3 December 2016. The tax invoice 4287 dated 2 December 2016 four $1,600 refers to the kitchen hand Mr Singh undertaking a course of ‘prepare dishes using basic method of cookery’. This course is irrelevant to the position of kitchen hand which is neither a Cook nor chef. Again, the invoice is the only evidence that it has been paid.
Conclusion
It is for the applicant to provide relevant information.
It is for the applicant to supply the relevant facts of each individual case, in as much detail as is necessary to enable a decision-maker to decide the relevant issues. As a result, a decision-maker is not required to make the applicant’s case for it. The Tribunal is not under the requirement to accept uncritically all the claims the applicant puts forward: MIEA v Guo & Anor [1997] 191 CLR 559 AT 596; Nagalingam v MIEA [1992] 38 FCR 191 and Prasad v MIEA [1985] 6 FCR 155 at 169-70.
Training Benchmark A – Restaurant & Catering NAT.
The applicant provided a training benchmark A payment of $1,095 on 7 November 2013 to an organisation Restaurant & Catering NAT. That organisation acknowledges the receipt. While the payment has been made outside the sponsorship period the Tribunal notes the commentary in the Minister’s PAM 3 where it states that training benchmark A (where the applicant’s contribution is 2% of the payroll) refers to a payment to an industry training fund of recent expenditure. The commentary explains that the payment is allocated to an industry training funds and operates in the same industry as the applicant’s business. The commentary continues: that the industry training funds are statutory authorities responsible for providing funding for training of eligible workers in certain industries. The applicant has not provided any information to the Tribunal that this organisation fits within that description.
The Tribunal is not satisfied that this organisation can be included in the category of industry training fund relating to restaurants. Therefore, this amount is not considered as within the Tribunal’s consideration of reg 5.19(3)(f)(ii).
The invoice 4100 issued by Reach for Training Pty Ltd dated 24 November 2014 for $300 is for a course ‘participate in safe work practices’. That course does relate to the applicant’s business. However, as there is no evidence when the course was undertaken by an Australian in the employ of the applicant. There is no evidence of the Australian employee who attended on that course.
Therefore, The Tribunal is not satisfied that it can be counted toward the applicant’s training benchmark aggregate.
The applicant has claimed to $1,300 for invoice 4227 dated 20 December 2015 from Reach for Training Pty Ltd. The course provided by that organisation is ‘maintain quality of perishable supplies’. It is asserted by the applicant that to its kitchen hand attended the training. The issue is whether such a course is relevant to the employment of a kitchen hand. Secondly, the invoice is relied upon by the applicant as being its receipt as there is no evidence of it having paid for that course.
The Tribunal is satisfied that the course is relevant to a kitchen hand in the course of his employment in the kitchen.
The next invoice under consideration is 4287 dated 2 December 2016. The amount of $1,600 was for the course ‘prepare dishes using basic methods of cookery’. The applicant states that again its kitchen hand undertook the course on 2 December 2016 and 3 December 2016. The applicant produced payslips PAYG summary and Mr Singh’s driver licence to confirm he is an Australian citizen. There is no evidence directly linking Mr Singh to the course. It is to be inferred from payslips where Mr Singh was at work when the course was undertaken. There is no independent evidence of the course having been undertaken on 2 December 2016 and 3 December 2016 other than the submission by the representative. At the hearing, the applicant’s representative asked as to whether the Tribunal would accept certificates to which it responded that it may do.
The applicant provided the Tribunal with the a certificate dated Monday, 5 December 2016 signed by the external providers CEO stating that Mr Parmenter Singh attended the course prepare dishes using basic methods of cookery. Also, another certificate was provided certify that Mr Parmenter Singh attended the course ‘maintain the quality of perishable items workshop’ which required his attendance on Monday, 21 December 2015 and Tuesday, 22 December 2015. The certificate was dated Wednesday, 23 December 2015. Both these courses have no relevance to the work of a kitchen hand but relate to either a chef or cook though neither attended. At the hearing, the applicant’s representative confirmed that Mr Parmenter Singh is no longer employed with the applicant.
The Tribunal is not satisfied that this expenditure should be counted toward the applicant’s benchmark contribution B.
The applicant claimed in invoice 4333 dated 6 March 2018, the sum of $1,100 for the course ‘shows social and cultural sensitivity’. Again, it is asserted the casual kitchen had attended this course. There is no evidence of the kitchen hand attending or any other employee.
The Tribunal is not satisfied that this course was relevant to the position undertaken by the kitchen hand. There is no evidence to indicate that any other person attended the course other than this employee.
Regulation 5.19(3)(f)(ii)
There is discretion for the Tribunal to consider the contributions made by the applicant in satisfying the training benchmark criteria. The Tribunal has given every opportunity of the applicant to provide the evidence needed.
The Tribunal considers it implausible for the certificates to be genuine in that to every opportunity was provided to this applicant to prove the Australian employee who attended the courses. It is only at the hearing that the applicant suggests that certificates could be obtained confirming the kitchen hands attendance. These certificates were duly given but there is no indication as to when the applicant receive them and whether the external trainer’s CEO supply the certificates on request without considering as to how they are to be used. The Tribunal does not accept the certificates of genuine.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in reg 5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
Accordingly, the requirement in reg 5.19(3)(f) is not met.
DECISION
The Tribunal affirms the decision under review to refuse 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
(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.

[2023] AATA 3690

11 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Year	Gross payroll	Contribution
30 June 2015	43,358	433.58
30 June 2016	125,819	1258.19
30 June 2017	104,004	1040.04
Total		2,731.81