TILES LINKS PTY LTD (Migration)

TILES LINKS PTY LTD (Migration) [2021] AATA 444 (23 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TILES LINKS PTY LTD
CASE NUMBER:  1813363
HOME AFFAIRS REFERENCE(S):          BCC2017/1689106
MEMBER:Phoebe Dunn
DATE:23 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 February 2021 at 3:54pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – visa applicant performing nominated role for minimum of two years in three years preceding nomination application – scope and responsibility of job tasks and value to employer – financial capacity to provide full-time employment for two years – financial stability of group of business, extensive dealings with major developer and contract for new project – training obligations during most recent standard business sponsorship period – benchmark not met for one year – discretion to disregard requirements – total expenditure across three years exceeds minimum requirements – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), rr 2.87B, 5.19(3)(c)(i), (d), (f)
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 on 23 April 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).
The applicant applied for approval on 11 May 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
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)(c)(i)(A)(ii) of the Regulations because the delegate was not satisfied that the nominee had been working full-time in the nominated position for a minimum of two years in the three years immediately preceding the nomination application.
The applicant, represented by Mr David Tran, the current director of the business, appeared before the Tribunal on 15 February 2021 and on 19 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hoang Nha Tang, a former director of the company and current business owner, Mr Duc Nguyen Ong, a former director of the company, Mr Hao Lee, the company’s taxation accountant, Ms Tram Mac, an employee of the business and Ms Thanh Nguyen, the related nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The hearing was held during the COVID-19 pandemic by video-conference. The Tribunal determined it was reasonable to hold a hearing by video, 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. Two of the witnesses, Mr Lee and Ms Mac appeared by telephone. The Tribunal notes that there were times during the hearing when the technology failed, requiring steps to be taken to address the issues. Notwithstanding this, the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
During the hearing on 15 February 2021, the Tribunal invited the applicant to provide further submissions and supporting evidence to address matters raised by the Tribunal which was provided in advance of the resumed hearing on 19 February 2021.
The applicant was represented in relation to the review by its registered migration agent, Ms Andie Minh Lam.
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.
Extensive written submissions were made to the Tribunal in advance of the hearing, in response to a request for information under s.359(2) of the Migration Act 1958 (the Act). Further written submissions were made during the hearing in response to questions from the Tribunal.
The business is a tiling business located in New South Wales servicing multi-million dollar contracts, with its main client being Meriton, a developer of large scale apartment buildings. The business has a number of related businesses, owned and operated by Mr Tang. At the hearing, Mr Tran and Mr Tang gave detailed oral evidence regarding the history and nature of the business, the nominee’s role and the importance of the nominee to the business.
Evidence of Mr Ong
Mr Ong stated that he was the director of the business when the nominee was recruited but was not involved in the recruitment process. He stated that during the period he was director, Mr Tran remained responsible for all business decisions and administration, noting that he was still ‘on the tools’ at that time as a site supervisor. He stated that he did not have a lot of engagement with the nominee, but was aware of her role as accountant for the business.
Evidence of Mr Tang
Mr Tang stated that he was the owner and mastermind of the business and a former director. Mr Tang stated that at the time the nominee was recruited, he owned four businesses and had transferred the directorship of the nominating business to Mr Ong, as his son was still in school at that stage. Since then, his son has become the managing director of the business, but he remains the key decision maker.
Mr Tang said that he had heard about the nominee through a contact, when she was working as an accountant for another company. He stated that he offered her a trainee position on the weekends and then the full-time role when he saw her skills and experience. He stated that even though he was not a director of the business at the time she was recruited he oversaw her work and was impressed with her performance and work ethics. He stated that the nominee was a vital member of the team and was pivotal to ensuring the financial stability and success of the business and business growth. He stated that she is involved in providing high level financial advice including relating to the potential purchase of new assets and businesses and undertaking financial modelling. He stated that he could rely on her to provide accurate, clear and organised financial reports and advice. He stated that she works closely with the company’s tax accountants, who lodge taxation documents for the business, noting that the nominee prepares all the financial statements and business activity statements and company tax returns, before providing them to the external accountant.
Mr Tang stated that the refusal came as a big shock to him and to the nominee. He stated that she took time off work as she was suffering from depression as a consequence of the uncertainty regarding her future. He stated that she left the business in early 2019 and moved to Tasmania as her husband secured work there. He stated that he was very keen to secure her return to the business and had been in discussions with the nominee, but that this had been prevented by the COVID-19 pandemic.
Mr Tang stated that another employee was filling in for the nominee, but that this was intended to only be a temporary situation as she performed a different role as his personal assistant. He stated that she is not as competent as the nominee and does not perform all of the functions of an accountant and he has to give her a lot more direction. He stated her role is more akin to that of a bookkeeper. He stated that she is not interested in taking on the role of full-time accountant for the business. Mr Tang noted that when the nominee left, he advertised for a new internal accountant, but could not find anyone suitable, noting that he requires someone who can speak Vietnamese and understands the construction industry, which is hard to find.
The Tribunal noted Mr Tang’s statutory declaration that the nominee would come back to the business if the nomination was approved and asked if Mr Tang had had any direct discussions with the nominee in that regard. Mr Tang stated that it was his true and sincere intention that the nominee return to work for him but stated that he had not spoken to her directly regarding this. He stated that the nominee had been under a lot of stress because of the visa refusal and a workplace incident in Tasmania. He stated that because of this he did not want to engage with her directly, so asked his assistant (Ms Tram Mac) to do so. He reiterated that he desperately needs someone with the nominee’s skills and experience and knowledge of the business and was hoping for her return as soon as possible. Mr Tang also noted that the nominee had returned to Sydney and was in hotel quarantine due to COVID-19.
The Tribunal inquired as to the applicant’s intentions regarding a start date for the nominee, noting that it was a requirement under r.5.19(3)(d) that the applicant provide two years full-time employment for the nominee and that the Tribunal required certainty that the business would provide such employment and from when. He stated that the business had recently won a major contract for an apartment building in Paramatta worth $9million and she would most likely start when the contract commences.
The Tribunal inquired as to the financial stability of the business, noting substantial losses reported in recent years. Mr Tang stated that he has a number of other companies and has a solid flow of business through Meriton and had a direct working relationship with the multi-billionaire owner of that business. Mr Tang referenced the new contract worth $9 million for an apartment tower in Parramatta. Mr Tang noted that he could transfer profit from a related entity to this business.
Evidence of Mr Tran
Mr Tran stated that his father was the mastermind of the company and that because he is still young and inexperienced his still looks to his father for all key decisions even though he his is the managing director. He referenced his statutory declaration, noting that his father was a driven businessman and a hard taskmaster and that many people found it difficult to work for him. He stated that the nominee had worked well with his father and was able to handle his father’s operating style, was extremely good at her job and was of great assistance to himself while he is still learning the business.
Section 376 certificate
At the hearing, the Tribunal raised with the applicant the existence of a certificate issued under s.376 of the Act on the Departmental file. The Tribunal noted that it had considered the certificate, but did not consider it to be valid as it had not been validly signed. The Tribunal noted that it had carefully considered the information covered by the certificate and did not consider it to bear any relevance to the matters before it and stated that, as such, the Tribunal would not be placing any weight on the information and was not proposing to release the information.
The hearing was adjourned to a date to be determined due to the unavailability of the interpreter to continue longer than the scheduled hearing time. Just prior to the adjournment, the Tribunal noted that it had concerns regarding the following matters and invited the applicant to provide further information and submissions addressing the matters orally or in writing, noting that it would afford the applicant two weeks to do so from that date of the resumed hearing:
a.Evidence of the nominee’s willingness to accept a new role with the company;
b.Evidence of a new signed contract providing for full-time employment for the nominee in the nominated position for at least two years on terms that do not preclude the possibility of extension;
c.Evidence addressing the financial capacity of the business to meet its employment obligations to the nominee; and
d.Further evidence addressing the applicant’s training benchmark commitments and obligations, noting:
i.the definition of payroll includes relevant payments to contractors and subcontractors;
ii.the requirement that training is required to be delivered to Australian citizen or permanent resident employees; and
iii.the discretion to disregard the failure to meet r.5.19(3)(f)(i) set out in r.5.19(3)(f)(ii) and requesting submissions from the applicant addressing this issue if that was its intention.
The applicant provided submissions and supporting documentation prior to the resumption of the hearing on 19 February 2021; including the following:
a.Covering submission dated 18 February 2021;
b.Statutory declaration from the nominee confirming that she intends to resume her employment in the nominated position on 1 March 2021;
c.Evidence that the nominee would be attending her therapy sessions via video link to Tasmania;
d.Updated contract of employment signed by Mr Tran;
e.Evidence that the nominee is being offered market rates;
f.Evidence of the company’s financial capacity to provide the salary to the nominee for at least two years;
g.Submissions and supporting evidence addressing the applicant’s training benchmark commitments and obligations.
At the resumed hearing of this matter, the Tribunal considered the submissions received on 18 February 2021 in detail and took further detailed evidence from Mr Tran and other witnesses. Mr Tran confirmed and reiterated the importance of the nominee to the business and noted that it was his strong desire and need that the nominee return to work as soon as possible, in the context of his lack of experience and his father’s ailing health. He emphasised the difficulty of finding a person with the nominee’s experience in the construction industry who could speak Vietnamese and handle his father. He stated that he needed the nominee to assist him with a smooth transition from his father to himself.
Evidence of Mr Lee
Mr Lee stated that he is the external tax account for the business and had worked closely with the nominee in her capacity as an accountant for some years prior to her departure in 2019. He stated that a business of this size and nature required an internal accountant and that the nominee performed this role, liaising directly with him on taxation matters. He stated that it was much more than a bookkeeper role and that the nominee plays an important role managing the financial side of the business for the director and providing high level strategic assistance in relation to business growth.
Mr Lee stated that since the nominee left the business he has been dealing directly with the owner and director of the business because they don’t have anyone working in the position. He stated that in his opinion they need an internal accountant to manage all aspects of the finances of the business, not just a bookkeeper, as the construction industry is complex. He stated that the role of the external tax accountant is in addition to the role of the internal accountant. He stated that he has not been engaged to undertake the role of internal accountant and does not wish to do so, noting that he has multiple clients that he has to service.
Evidence of Ms Mac
Ms Mac stated that she works for the business owner and has numerous daily tasks relating to his diary, organising meetings, interviewing new staff and supporting him to establish a new company focused on the labour hire industry. She stated that she has been undertaking some of the tasks of the nominated position since the nominee left but does not perform the role of internal accountant and is not interested in the role full-time. She stated that in her opinion the company needed the nominee very much as things had become quite ‘messy’ and required her diligence and oversight. She stated that she believed that the nominee was the best person for the position.
Evidence of Ms Nguyen
The nominee gave detailed oral evidence regarding the nature of the nominated position and her intentions in relation to the role. Ms Nguyen confirmed that she had returned to Sydney a few weeks ago after the restrictions were lifted and was looking forward to commencing full-time in the role. She stated that her husband would return to Sydney once he had given notice and served out his notice period. She stated that she would continue to seek the support of her psychologist in Tasmania via video to help ensure her long term mental wellbeing but that she was fit to work.
Ms Nguyen stated that she commenced at the business in 2015 and was offered the role after demonstrating her capacity on a trial. She described in detail her duties and responsibilities, noting her role in providing high level financial and strategic advice as well as managing compliance and all aspects of the business’ finances and liaising with the external accountants on tax related issues. She stated that she had two people working in her team; an assistant and a purchase officer. She reiterated that she was keen to return to the business and support the business to continue to grow, noting that her family was involved in construction and she had a long term interest in that area. Ms Nguyen noted that the construction industry is very complex, and she enjoyed the intellectual rigour of assisting the business owner and his son on finances and strategy. She noted that she understood that the business was in a messy state and she was keen to get it back into a good shape and support future plans.
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.
Based on the information on the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee and included the relevant certification.
The application for approval identifies Ms Thanh Nguyen, the nominee, who, according to Departmental records held a Subclass 457 visa from 31 March 2015.
The occupation identified in the application is that of Accountant (General) (ANZSCO 221111). The Tribunal is satisfied based on the employment documents for the nominee, together with evidence of the nominee undertaking the role of accountant for the business, that the occupation identified is the same occupation carried out by the nominee as the holder of a 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 applicant was approved as a standard business sponsor from 22 February 2016 to 22 February 2021 and nominated the nominee for a Subclass 457 visa, which was granted on 31 March 2015.
The Tribunal has received current information evidencing that the applicant is actively and lawfully operating a business in Australia, including an ASIC current and historic search, financial statements and company tax returns for the financial years ending 2018 and 2019, and recent business activity statements from FY2019 to FY2020.
The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA or r.2.59(h) or r.2.68(i) of the Regulations.
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 two of the three 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 two years in the three years immediately before the application.
In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 31 March 2015 to work as Accountant (General), and the nomination application was lodged on 11 May 2017.
The determinative issue in this case if whether the nominee was performing the role of Accountant (General) full time for at least two years prior to lodgement of the nomination application. At first instance the delegate concluded that the nominee was not undertaking that role as the company engaged the services of an external accountant.
The applicant provided extensive documentary evidence addressing this issue and the matter was discussed at length at the hearing. The Tribunal received oral evidence from the nominee and other witnesses specifically addressing this issue. In particular, the Tribunal notes evidence before it that was not before the original decision maker regarding the complexities of the construction business, the size of the business and related entities, applicable regulatory issues and the role of the internal accountant compared to the external taxation accountant engaged by the business. The Tribunal also notes extensive oral and documentary evidence regarding the tasks and role of the nominee during her employment with the business. On the basis of this evidence the Tribunal is satisfied that the nominee was undertaking the role of Accountant (General) for the business prior to her departure in early 2019.
The Tribunal has considered documentary evidence before it, including the nominee’s ATO notices of assessment and PAYG statements for FY2015 to FY2019, and a letter from the applicant dated 19 April 2017 confirming the nominee’s employment in the nominated position full time from 6 April 2015.
On the basis of the evidence before it, the Tribunal is satisfied that the nominee has worked for the applicant full time in the position of Accountant (General) for at least two years in the three years immediately before the application.
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 two years on terms that do not expressly preclude the possibility of an extension.
The future employment of the nominee was discussed at length at the initial hearing, noting evidence before the Tribunal that the nominee was not currently working for the business, had moved to Tasmania with her husband and it was not clear when or if the nominee intended to return to the business or on what terms. The Tribunal noted that it required certainty on these matters as well as on the financial capacity of the business to provide full-time employment for the nominee for at least two years on terms that did not expressly preclude the possibility of an extension. The Tribunal noted that the business had made a loss of $112,361.70 in FY2018 and a loss of $95,818.46 in FY2020 and requested further information addressing this issue.
As noted above, at the first hearing, Mr Tang gave detailed oral evidence addressing the financial stability of the business. Mr Tang noted his extensive business dealings with Meriton through this business and related entities and new contracts signed with Meriton worth $9 million. Mr Tang noted also the capacity to move profit and loss between the businesses.
Prior to the resumption of the adjourned hearing, the applicant provided additional documentary evidence addressing these issues, including:
a.Signed contract of employment for the nominee dated 16 February 2021 (signed on 17 February 2021), providing for employment from 1 March 2021 in the position of Accountant on a permanent basis for two years renewable and ongoing at a base salary of $62,000 plus superannuation at the legislative rate, together with a position description;
b.Statutory declaration from the nominee confirming that she intends to resume the position on 1 March 2021;
c.Documentary evidence showing that she will be attending psychology sessions with her psychologist via video-link to Tasmania;
d.Submission dated 18 February 2021 addressing the financial capacity of the business;
e.Profit and Loss Statement for FY2020 for related entity P&G Joinery Australia Pty Ltd, showing profit of $201,636.16 and income of $2,713,376; and
f.Balance Sheet for FY2020 for P&G Joinery Australia Pty Ltd.
The Tribunal has carefully considered documentary evidence before it regarding the future employment of the nominee, including the nominee’s most recent Employment Contract dated 16 February 2021, providing for an annual salary of $62,000 plus superannuation for a period of two years, ongoing and renewable, from 1 March 2021. The Tribunal has also considered oral evidence of the applicant and the nominee regarding the nominee’s future intentions. The Tribunal is satisfied that the nominee intends to resume work on 1 March 2021 as contracted, in the nominated position of Accountant.
The Tribunal has also considered the financial capacity of the business to meet its employment obligations to the nominee for at least two years from the date of grant of a Subclass 186 visa. Having regard to the financial documents before it and oral evidence of the applicant and the applicant’s tax accountant, the Tribunal is satisfied that the applicant can meet its employment obligations to the nominee for at least two years, including paying the nominee’s base salary and meeting its superannuation obligations.
Having carefully considered the information before it, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly exclude the possibility of extending the period of employment.
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 nominee is the only accountant employed by the applicant. The applicant has provided evidence of market testing of the position, which confirms that the current salary of the nominee of $62,000 is within the range expected for a full-time accountant in Sydney, with an average salary of $61,561, according to payscale.com. The applicant has also provided evidence of recent advertisements for similar roles on seek.com, showing jobs in the range of $60,000 to $74,999.
Given the above, the Tribunal is satisfied 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 same location.
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.
The most recent standard business sponsorship (SBS) for the applicant was approved on 22 February 2016 for a period of five years to 22 February 2021. The Tribunal has received submissions from the applicant regarding compliance with the applicant’s training benchmark commitments and obligations, seeking to establish compliance with Training Benchmark B.
The Tribunal notes that when the nomination was lodged on 11 May 2017, the applicant was required to comply with the training benchmark commitments and obligations set out in r.5.19(3)(f) as it applied at that time. These requirements have since been replaced with the requirement to pay the ‘Skilling Australians Fund’ training contribution charge by the Migration Amendment (Skilling Australians Fund) Act 2018 and the Migration Amendment (Skilling Australians Fund) Regulations 2018 (the amending Regulations). The new training contribution charge requirement applies to nomination applications made on or after 12 August 2018.
Relevantly for the applicant in this case, the obligation in r.2.87B of the Regulations for sponsors to meet the training benchmarks was repealed by item 33 of the amending Regulations from 12 August 2018, and there is a transitional provision exempting a sponsor from complying with the repealed r.2.87B in relation to a period of 12 months ending on or after 12 August 2018.
This means that for the applicant’s most recent SBS, the applicant is exempt from complying with r.2.87B for the third year of the most recent SBS as it ended after 12 August 2018. However, the requirement to ‘fulfil any commitments’ under r.5.19(3)(f)(i)(A) remains. There is no evidence before the Tribunal that the applicant made any other commitments relating to training beyond complying with the r.2.87B obligations.
IMMI 13/030 states that for the purposes of meeting Training Benchmark B, the applicant is required to demonstrate recent expenditure by the business to the equivalent of at least 1% of the payroll of the business in the provision of training employees who are Australian citizens and permanent residents and that it is related to the purpose of the business. Relevantly, this includes evidence of payment of external providers to deliver training for Australian citizens and permanent resident employees.
Compliance with the applicant’s training benchmark commitments and obligations was discussed at the initial hearing, with the Tribunal noting it required further information on which to determine compliance, including regarding the residency status of the employees who had received the training. The Tribunal also noted that the definition of payroll included payments to subcontractors where the subcontracted services were relevant to the nature of the business, for the purposes of calculating the minimum expenditure requirements in each year of the SBS. The Tribunal identified that based on this definition and based on the Tribunal’s calculations, but subject to further submissions from the applicant, it appeared that the applicant had met its training benchmark commitments and obligations in the first year of the SBS, but not in the second year. The Tribunal noted that as a consequence of the Skilling Australians Fund amendments the requirement to meet the obligations had been removed for the third year, but the commitments remained. The Tribunal invited the applicant to provide further written submissions addressing these issues, which were received prior to the resumed hearing.
At the resumed hearing, the Tribunal stated that it had reviewed the additional documentation submitted by the applicant and noted again that based on its calculations of the total payroll of the business in the first two years of the most recent SBS, the applicant had met its training benchmark commitments in accordance with Training Benchmark B, but had not met its commitments and obligations in year two. The Tribunal further noted that the applicant had paid money towards training in year three of the most recent SBS, notwithstanding that its obligation to do so had been removed and that, based on its calculations, the Tribunal considered that the applicant had spent an aggregate on training across the three years of its most recent SBS in excess of the minimum requirement of 1% of the total payroll. The Tribunal invited further discussion on this issue from the applicant or confirmation from the applicant that it was requesting the Tribunal to exercise its discretion to disregard the failure to meet its commitments and obligations in year two of the most recent SBS, on the basis of this aggregate expenditure across the three years. The applicant confirmed that it was requesting that the Tribunal exercise its discretion in r.5.19(3(f)(ii) to disregard any finding of failure to meet its commitments and obligations in any one year.
The financial reports and payroll documents before the Tribunal indicate that the nominator’s total payroll (comprised of wages, superannuation and relevant subcontractor payments) for the first year of the SBS (22 February 2016 to 21 February 2017), was $308,193.27, based on the Tribunal’s calculations. This equates to a requirement to spend at least $3,081.93 under Training Benchmark B on training Australian citizens and permanent residents for each year they were approved and employed a Subclass 457 visa holder. In the second year of the SBS (22 February 2017 to 21 February 2018) the payroll was $731,903.23, equating to a requirement to spend at least $7,319.03 under Training Benchmark B. In the third year of the SBS (22 February 2018 to 21 February 2019) the payroll was $1,040,096.50, equating to a requirement to spend at least $10,400.96 under Training Benchmark B, had those obligations still been in place.
The Tribunal has had regard to documentary evidence before it that the applicant has spent the following amounts on training Australian citizens and permanent residents in compliance with Training Benchmark B during the period of its most recent SBS:
a.Year 1:           Receipt for $8,320 to IIBM training paid 13 June 2016 and 17 June 2016;
b.Year 2:            Receipt for $3,150 to IIBM training, paid on 7 June 2017; and
c.Year 3:           Receipt for $7,000 paid to PDM Training, paid 1 November   2018.
The Tribunal has also considered documentary evidence provided by the applicant that the training was delivered to Australian citizens and permanent residents who were employed by the business at the time the training was delivered.
Based on the material before it, the Tribunal is satisfied that the applicant fulfilled its commitments and complied with its obligations in relation to training during the first year of its most recent SBS, by expending in excess of the minimum expenditure required on training Australian citizens and permanent residents on matters relevant to the business in that year of the SBS under Training Benchmark B. However, the Tribunal is not satisfied that the applicant met those commitments and obligations in the second year of the most recent SBS as the expenditure on training in that year did not meet the requisite minimum of 1% of total payroll of the business. Accordingly, the Tribunal finds that the applicant did not meet r.5.19(3)(f)(i).
In relation to the third year of the most recent SBS, the Tribunal finds that by virtue of the introduction of the Skilling Australians Fund levy, the applicant’s obligations under r.2.87B have ceased, and further that there is no evidence before the Tribunal that the applicant made any commitments relating to training beyond complying with the r.2.87B obligations. The Tribunal notes that the applicant paid $7,000 towards eligible training in year three as evidence of its ongoing commitment to training, and that the aggregate of expenditure across the three years of the most recent SBS was $18,470, in excess of 1% of the aggregate total payroll of the business for the three years of $10,400.96.
The Tribunal has considered whether, in these circumstances, the Tribunal should exercise its discretion in r.5.19(3)(f)(ii) to disregard the failure of the applicant to meet its commitments and obligations in year two of the most recent SBS on the basis that the aggregate of expenditure over the first three years of the most recent SBS exceeded the minimum requirements. In doing so, the Tribunal has taken into consideration that the applicant met its commitments and obligations in the first year of the most recent SBS and has provided evidence of expenditure in year two (albeit not meeting the minimum requirement for that year) and ongoing expenditure on training in year three demonstrating a continuing commitment to training, notwithstanding that its obligations have since ceased. The Tribunal also notes that the aggregate expenditure well exceeded the minimum requirements across the three years.
Accordingly, the Tribunal considers it is reasonable to exercise its discretion in r.5.19(3)(f)(ii) to disregard any failure by the applicant to meet its training commitments and obligations in the second year of the most recent SBS, on the basis of the aggregate expenditure across the three years exceeding the minimum requirements and noting that by virtue of the introduction of the Skilling Australians Fund levy, the applicant’s obligations under r.2.87B have now ceased.
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 a 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 of the Regulations.
There is no evidence before the Tribunal to indicate that there is adverse information known to Immigration about the applicant or an associated person.
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 evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a 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.
Phoebe Dunn
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.

[2021] AATA 444

23 February 2021

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Immigration

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