The Trustee for the Jimmink & Josephs Family Trust (Migration)

[2021] AATA 3124

The Trustee for the Jimmink & Josephs Family Trust (Migration) [2021] AATA 3124 (13 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for the Jimmink & Josephs Family Trust

CASE NUMBER:  1825171

HOME AFFAIRS REFERENCE(S):          BCC2016/4383211

MEMBER:Terrence Baxter

DATE:13 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 13 July 2021 at 3:16pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream –  Cook – position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 years – tasks of the nominated position with the company correspond to the specified occupation of Cook –applicant lawfully operating a business in Australia–decision under review set aside

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

CASES

MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

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 17 August 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, The Trustee for the Jimmink and Josephs Family Trust, applied for approval on 28 December 2016. The applicant nominated Gurjeet Singh (the nominee) in the position of Cook. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found that the applicant had not demonstrated a need for a paid employee to work in the nominated position under the direct control of the applicant.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 29 August 2018.

6. Ms Cassandra Josephs, one of the trustees of the applicant Trust, appeared before the Tribunal by video conference on 18 May 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conference.

8. The applicant was initially represented in relation to the review by its registered migration agent, Mr Joseph Louis Laurence Auclair of Migration Guru Pty Ltd. From 6 November 2019, the applicant was represented in relation to the review by Mr Ravinderjit Singh Toor of Visa Point Migration Services. Mr Toor attended the Tribunal hearing by video conference. From 1 July 2021, the applicant was represented in relation to the review by Mr Bhupinder Singh, also of Visa Point Migration Services.

9. 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

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented prior to the hearing

11. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:

    a.Financial statements for the 2016 financial year.

    b.ABN information for the applicant.

    c.An employment contract and position description of the nominee dated 20 November 2016.

    d.An organisational chart.

    e.Evidence of industry training contributions, a summary table regarding these contributions and a submission regarding training benchmark requirements.

    f.An extract from the Trust Deed of The Jimmink and Josephs Family Trust.

    g.Payroll activity summary prepared by the applicant for the period from February 2016 to February 2017.

    h.Profit and loss statements for the 2013, 2014, 2016 and 2017 financial years.

    i.A submission from the applicant’s then representative dated 23 August 2018 (after the date of the delegate’s decision).

    j.Photos of the business premises and catering menu.

    k.An unexecuted amendment to the Licence Agreement for the applicant’s occupation of its business premises.

    l.Notification of the applicant’s approved business nomination for the nominee’s previous Subclass 457 visa dated 25 July 2016.

12. The applicant produced to the Tribunal the following documents:

    a.An ASIC current and historical business name extract for the business name Source Catering and Organics.

    b.ASIC business name details summary and current business name extract.

    c.Financial statements for the 2019 and 2020 financial years.

    d.Trust tax returns for the 2019 and 2020 financial years.

    e.Updated organisational charts for the periods before and after the COVID-19 pandemic and a proposed organisational chart pending approval of an expansion of the applicant’s business operations.

    f.Submissions from the applicant dated 1 March 2021.

    g.Copies of documents previously provided to the Department.

    h.An updated employment contract dated 3 February 2021 and job description.

    i.Evidence of the tasks performed by the nominee in the position.

    j.Further photos of the business premises and catering prepared by the applicant.

    k.Recent payslips of the nominee.

    l.PAYG payment summaries of the nominee for the 2017 to 2019 financial years.

    m.Income statements of the nominee for the 2019 and 2020 financial years, and year-to-date income statement for the 2021 financial year.

    n.The nominee’s email response to the job advertisement for the position dated 17 November 2015.

    o.Email correspondence between the applicant and Ingham’s Enterprises Pty Ltd (Ingham’s), and an Ingham’s Café Proposal prepared by the applicant.

    p.A Skills Recognition Trades (SRT) documentary evidence assessment outcome notice for the nominee dated 12 May 2021.

    Evidence presented at the hearing regarding the applicant’s operations

13. Ms Josephs gave evidence regarding the business operations of the applicant Trust. She stated that the applicant traded under the business name Source Catering and Organics and that it had been operating for approximately 15 years. She said that the applicant operated a small boutique catering business and also had a contract to operate a café/restaurant within the premises of Manheim Car Auctions, Brisbane (Manheim’s) which was a national and global organisation involved in selling motor vehicles. She said that from the kitchen located within those premises, the applicant supplied the café and internal catering for Manheim’s, as well as providing an external catering service.

14. Ms Josephs stated that the COVID-19 pandemic had affected the applicant’s catering business. She said that, prior to the pandemic, the applicant had begun to provide catering services to large organisations such as Dulux and Australia Post. As many of the workers for these organisations were required to work from home during lockdowns, the catering services which had previously been provided by the applicant were not required. She said that Manheim’s did not shut their site and that accordingly the applicant had also continued to trade through the pandemic. She said that the café and internal catering at Manheim’s was the applicant’s core business and that they had provided external catering services to a greater or lesser extent from time to time as their circumstances varied.

15. Ms Josephs stated that she and her husband and co-trustee Mr Jimmink were both qualified chefs. She said that Mr Jimmink looked after the front of house requirements for the business and that the nominee looked after the cooking. She said that since July 2020 she had obtained outside work.

16. The nominee gave evidence regarding his employment by the applicant and the tasks performed by him in the position.

    Evidence presented after the hearing

17. After the hearing, the applicant produced to the Tribunal the following documents:

    a.Email correspondence between the applicant and the applicant’s accountant from May 2021.

    b.Current market salary evidence.

    c.Evidence of a Suncorp Insurance claim from 10 December 2019.

    d.An ATO payment plan for the applicant.

    e.Submissions from the applicant dated 31 May 2021.

    f.Payslips of Ms Josephs from the 2021 calendar year.

    g.An updated employment contract of the nominee dated 20 May 2021.

    h.A draft year-to-date profit and loss statement for the 2021 financial year.

    i.Additional profit and loss statements for the 2016 to 2020 financial years.

    j.Evidence of recent training benchmark contributions made by the applicant.

    k.The income tax return of Mr Benhard Jimmink for the 2020 financial year.

    l.The income tax return of Ms Josephs for the 2020 financial year.

    The application is compliant: r.5.19(4)(a)

18. Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.

19. Having regard to the information provided by the Department, the Tribunal is satisfied that the application for approval was made on the approved form, was accompanied by the prescribed fee and included a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.5.19(4)(a)(i) are met.

20. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of r.5.19(4)(a)(ii) and, for example, r.5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the nominee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and r.5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years.

    [1] Dictionary.com (accessed January 2021).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand r.5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

21. The delegate found that the applicant had not provided a submission to demonstrate that there is a need for the position and found that this requirement had not been met. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to satisfy r.5.19(4)(d)(i), the Tribunal considers that this issue is more appropriately considered under r.5.19(4)(d)(i) later in these Reasons.

22. The Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Cook. The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Cook under the applicant’s direct control such that r.5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established that the nominee will be employed on a full-time basis in the position for at least two years for the purposes of r.5.19(4)(d)(i).

23. Having found that r.5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

24. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

25. The applicant produced to the Tribunal recent taxation returns, financial statements, activity statements and ASIC evidence in respect of the applicant’s business name. The business activity statements establish that the applicant’s ABN status is active and that the applicant is registered for GST. Ms Josephs gave evidence of the applicant’s business activities.

26. The applicant’s financial statements reveal that the applicant has received sales income of $218,794, $209,701 and $182,699 in the 2018, 2019 and 2020 financial years respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely the operation of a café and catering service.

27. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour hire: r.5.19(4)(c)

28. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.

29. Ms Josephs gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.

30. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Terms of employment of the visa holder: r.5.19(4)(d)

31. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

32. The Employment Contract dated 20 May 2021 produced to the Tribunal provides that the nominee is to be employed for 38 hours per week (which qualifies as full-time employment) and that the position description is Head Cook. The document further provides that the agreement is to commence on the grant of the nominee’s Subclass 186 visa and that the employment is for two years. The agreement does not preclude the extension of employment beyond two years. Accordingly, the requirement in r.5.19(4)(d)(ii) is met.

33. Further, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264) so that the Tribunal can be satisfied that the nominee will be employed in that position for the period of two years.

34. The financial statements provided by the applicant to the Department and the Tribunal disclose the following trading figures:

Financial year	2018	2019	2020
Sales	$218,794	$209,701	$182,699
Cost of sales	$69,592	$67,406	$68,074
Gross profit	$149,202	$142,295	$114,625
Other income	$1,859	$25,915	$40,228
Total income	$151,061	$168,210	$154,853
Expenses	$145,079	$97,748	$111,980
Operating profit	$5,982	$70,462	$42,873

1. The applicant’s business operations are modest in size, with annual sales averaging slightly over $200,000 for the three financial years up to 30 June 2020. The applicant’s operating profit in the 2018 financial year was limited to $5,982. However, the applicant’s wages expenditure was reduced after that year and the nominee has been the only employee of the applicant in the 2019 and 2020 financial years. The applicant’s profits increased accordingly in those years.

2. At the hearing, Ms Josephs was asked to explain the reduction in the applicant’s sales in the 2020 financial year. She stated that prior to March 2020 the business had been doing very well, but that the applicant’s external catering sales were totally cancelled after the onset of the COVID-19 pandemic. She said that the staff of the businesses for whom catering services had been provided were required to work from home and that the applicant’s sales for the quarters after March 2020 were not reflective of the applicant’s earning capacity. The Tribunal notes that the activity statements which have been provided reveal a significant downturn in sales after April 2020.

3. The Tribunal expressed to Ms Josephs its concerns that the applicant’s taxation liabilities as at 30 June 2020 amounted to the considerable sum of $70,543. She acknowledged that this liability was payable and said that she had struggled to have tax returns lodged in the years from 2016 to 2018. She said that, as a result, the liabilities had increased. Ms Josephs stated that the applicant had recently entered into a payment plan with the Australian Taxation Office and was complying with that payment plan. After the hearing, the applicant produced a copy of the payment plan with evidence of payments having been made in accordance with the plan.

1. The applicant produced evidence to the Tribunal that it was negotiating with Ingham’s to provide café and catering services to that organisation. Ms Josephs stated that, if these negotiations are successful, the nominee would be transferred to the Ingham’s site because it is larger, with up to 2,400 employees. She said that some foods may be prepared at Ingham’s for supply to the Manheim’s site. Ms Josephs agreed that no final decision had been made in relation to the Ingham’s proposal. In the circumstances, the Tribunal does have regard to the possibility that the extent of the applicant’s business operations will be expanded, but does not place significant weight on this possibility, given the uncertainty of the outcome of the applicant’s proposal.

2. At the hearing, the Tribunal also expressed its concern to Ms Josephs that the major asset in the applicant’s balance sheet was a debt payable by the trustees of the Trust, being her husband and herself. The Tribunal noted that no evidence had been provided of the capacity of the trustees to pay that debt if called upon. Ms Josephs stated that she was deriving outside income and produced evidence of the receipt of that income after the hearing. Ms Josephs also stated that she and her husband had an equity exceeding $2,000,000 in a private property portfolio and were able to pay the debt to the Trust if necessary. Although no evidence of the net value of the property portfolio has been provided to the Tribunal, the applicant did produce to the Tribunal after the hearing copies of the trustees’ personal tax returns which reveal ownership of six freehold properties, five of which are income-producing. The Tribunal is satisfied that the trustees have the capacity to pay to the Trust the beneficiary loans referred to in the balance sheet.

3. Ms Josephs was asked whether there was a real need for the applicant to employ the nominee as a cook, having regard to the fact that both of the trustees are qualified chefs. She said that she was unable to personally work in the business because of her outside employment. She also said that her husband was more of an entrepreneur than a chef and that he did not wish to be “stuck behind a stove”. She said that he enjoyed working in the front of house. She also said that the applicant hoped to restore its catering services when circumstances permitted and that her husband was heavily involved in the catering service, making sure that problems did not arise and that their customers were satisfied with the service. She said that the applicant had trained the nominee since he began employment in 2016 and that he did all the cooking for the business.

4. The Tribunal notes that the applicant recorded profits for the three financial years for which financial statements were provided and that the applicant employed the nominee throughout that period, having paid him salaries of $54,936, $52,863 and $53,900 in those three years. Although the salary of $58,000 payable to the nominee under the recent Employment Contract represents a slight increase on the salary which was previously payable to him, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Cook in accordance with the Employment Contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

5. Accordingly, as the requirements of both r.5.19(4)(d)(i) and (ii) are met, the requirement in r.5.19(4)(d) is met.

   No less favourable terms and conditions of employment: r.5.19(4)(e)

6. Regulation 5.19(4)(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.

7. The 2021 Employment Contract provides that the applicant will pay to the nominee a salary of $58,000 per annum for a 38-hour week plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992. The nominee is entitled to leave in accordance with the Hospitality Industry (General) Award 2010 and the National Employment Standards.

8. The applicant produced evidence in the form of job advertisements with the portal Seek for the positions of Chef and Cook in Brisbane with advertised salaries ranging between $50,000 and $59,999 per annum and between $25 and $28 per hour for part-time work (equivalent to $49,400 to $55,328 per annum for 38 hours work per week). The salary to be paid to the nominee is in accordance with the evidence from Seek.

9. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

10. Accordingly, the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

11. Regulation 5.19(4)(f) 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. 

12. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

13. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

14. Regulation 5.19(4)(g) requires that the applicant 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.

15. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

16. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)

17. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

    Regulation 5.19(4)(h)(i)(A) and (AAA) – the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation

18. The occupation proposed by the applicant was Cook, which has the six-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 351411 and which is specified in the relevant instrument, being IMMI 16/059. The tasks specified in ANZSCO for that occupation include:

    o    examining foodstuffs to ensure quality

    o    regulating temperatures of ovens, grills and other cooking equipment

    o    preparing and cooking food

    o    seasoning food during cooking

    o    portioning food, placing it on plates, and adding gravies, sauces and garnishes

    o    storing food in temperature-controlled facilities

    o    preparing food to meet special dietary requirements

    o    may plan menus and estimate food requirements

    o    may train other kitchen staff and apprentices.

19. The duties and responsibilities of Cook set out in the position description are consistent with the tasks set out in ANZSCO. Ms Josephs gave evidence of the tasks performed by the nominee in the position and the applicant produced copies of menus of meals provided by the applicant. Ms Josephs stated that, although the applicant did provide meals such as sandwiches, burgers and wraps, all of the meats were prepared and cooked on site by the nominee who also prepared all sauces used in preparation of the meals. She also said that the applicant provided “all-day breakfasts” in the café and that the nominee was responsible for preparing these meals.

20. Ms Josephs stated that both she and her husband had backgrounds in fine dining and that the applicant was occasionally required to provide fine dining lunches at national management meetings of Manheim’s. She said that the applicant provided catering of a high standard, which accounted for the success of the business.

21. Ms Josephs was questioned whether the tasks performed by the nominee were those of a Cook, or of a lower skill level such as a Food Preparation Assistant or associated with a Fast Food or Takeaway Food service. She described the types of meals prepared by the nominee and asserted that a Cook was required to work in the position.

22. The nominee gave evidence of the range of meals prepared by him, he not having been present when the evidence of Ms Josephs was given in relation to this requirement. He said that he did all the cooking in the applicant’s business. He also gave evidence of meeting the dietary requirements of customers.

23. Based on all the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Cook specified by the Minister in the relevant instrument, being IMMI 16/059. That instrument specifies that, for this nomination application, the occupation of Cook excludes positions in Fast Food or Takeaway Food services. Based on the evidence, the Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of r.5.19(4)(h)(i)(A) and (AAA) are met.

    Regulation 5.19(4)(h)(i)(B)(I) – the nominator’s business has operated for at least 12  months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph

24. The applicant produced financial statements to establish that the applicant has been operating its business since at least the 2013 financial year. Ms Josephs stated at the hearing that the applicant had been operating its business since 2005.

25. The training benchmarks and training requirements are specified in instrument IMMI 13/030. The business is required to show that training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business. The training benchmarks for an established business are:

    (A)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as 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.

26. The applicant submitted to the Department the following evidence of payments to industry training funds:

    a.$1,309 to Bond University on 24 December 2014.

    b.$1,166 to TAFE Queensland on 30 November 2015.

    c.$3,250 to TAFE Queensland on 8 August 2017.

27. The applicant submitted to the Tribunal evidence of the payment of an amount of $5,734 to Victoria University on 31 May 2021. The payment was expressed to be in respect of the 2018, 2019 and 2020 financial years.

28. In order to meet Benchmark A, the applicant is required to establish that the payment to the training fund is equivalent to at least 2% of the payroll of the business in the relevant period. It is necessary to consider the meaning of “the payroll of the business” for this requirement. The Department’s policy contained in its Procedures Advice Manual (PAM3) states that for this requirement, payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments, defined as wages in the Act relating to payroll tax in the relevant State/Territory, that the applicant has paid to their employees during the relevant 12-month period.

29. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.

30. The definition in the policy is consistent with the definition in the Macquarie Dictionary (accessed August 2020) which relevantly defines “payroll” as:

    Noun 1. A roll or list of persons to be paid, with the amounts due.

    2. the aggregate of these amounts.

    3. the money that is actually paid out.

    The definition in the policy is also consistent with the terminology contained in the Payroll Tax Act 1971 of Queensland under which payroll tax is imposed on all taxable wages, and wages are relevantly defined to mean any wages, remuneration, salary, commission, bonuses or allowances paid or payable (whether at piecework rates or otherwise and whether paid or payable in cash or in kind) to an employee as an employee, and, without limiting the generality of the foregoing, includes a superannuation contribution. Accordingly, the Tribunal finds that the term payroll in the instrument for any period includes wages and superannuation paid for that period.

31. The following table sets out the applicant’s payroll expenditure and the training Benchmark A amount calculated from those financial statements for the 2018 to 2020 financial years:

Financial year	2018	2019	2020
Wages	$99,118	$53,205	$54,114
Superannuation	$9,396	$5,022	$5,120
Total payroll	$108,514	$58,227	$59,234
Benchmark A amount	$2,171	$1,165	$1,185

1. The recent training fund contribution by the applicant exceeds the Benchmark A amount for the 2020 and preceding financial years. The Tribunal is satisfied that the requirements of r.5.19(4)(h)(i)(B)(I) are met.

2. Accordingly, having regard to the above findings, the requirements of r.5.19(4)(h) are met.

3. 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

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

   Terrence Baxter
   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.

   …

   Direct Entry nomination

   (4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

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

   (ii)      directly operates the business; and

   (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)both of the following apply:

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

   (ii)      the terms and conditions of the employee’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)       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

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

   (h)either:

   (i)       both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).