Total Automotive Service Company Pty Ltd (Migration)

[2019] AATA 4585

Total Automotive Service Company Pty Ltd (Migration) [2019] AATA 4585 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Total Automotive Service Company Pty Ltd

CASE NUMBER:  1815359

DIBP REFERENCE(S):  BCC2017/2227267

MEMBER:Susan Reece Jones

DATE:4 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2019 at 12:28pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Motor Mechanic – training commitments and obligations – eligible expenditure – assessed sponsorship period – verifiable proof of payment – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
Hneidi v MIAC [2009] FCA 983

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 Immigration on 10 May 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2.The applicant applied for approval on 23 June 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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

4.The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(f)(i)(A) and 5.19 (3)(f)(i)(B) of the Regulations because the applicant did not provide sufficient evidence to demonstrate expenditure on the provision of employees of the business who are Australia citizens and / or Australia permanent residents during the sponsorship period.

5.The applicant operates TOTAL AUTOMOTIVE SERVICE COMPANY PTY LTD, a motor vehicle repair business in Melbourne, Victoria, Australia.

6.The Tribunal conducted a hearing on 19 July 2019 and the applicant’s Director Mr Zhong WU, appeared before the Tribunal to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7.The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.

8.Prior to the hearing, the Tribunal wrote to the applicant via the representative, pursuant to s.359(2), to invite him to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination. The applicant’s representative submitted various documents in response to the Tribunal’s letter.

9.In addition, the applicant was granted extra time at the hearing to provide additional material in support of the application including the following:

• Financial statements (including balance sheet and profit and loss statements) for the financial years ending 2016, 2017, 2018.

• Company tax returns for financial years ending 2017 and 2018.

• Business Activity Statements 2016 – 2019.

• Various letters from the company’s accountant, Mr Tan of Kesaco Pty Ltd.

• ANZ Bank: Business bank statements from 2014 – 2019.

• Current organisational structure chart of the company.

• Employment Agreements dated 2013, 2017 and 2019.

• Position description for the nominated occupation of motorcycle mechanic.

• Payroll statements of the nominee including selected payslips from 2014 – 2018 as evidence that the nominee was employed full time in the position for which he held a Subclass 457 visa for 2 of the 3 years preceding the nomination application made on 10 May 2017.

• PAYG payment summaries of the nominee for 2015 – 2019.

• Payment records (cheque stubs) of salary paid to nominee and corresponding bank statements of the nominee with evidence of receipt by nominee of payment.

• Business bank account transaction records showing payment of salary to the nominee

• Nominee’s ATO Notice of Assessment 2015, 2016, 2017, 2018.

• Nominee Individual Tax Return for 2015.

• Letter of support from the Mr Wu Director, dated 30 May 2019 confirming the nominee’s continuing employment with the applicant.

• QuickSuper employer superannuation contribution summary.

• Nominee’s superannuation annual statements from 2015 - 2019.

• Payment details of various payments for training benchmarks.

• ATO integrated account transaction records for Total Automotive Service Company Pty Ltd and related entity H&K Panel Works Pty Ltd (deregistered) together with a further statement about the  tax issues  of the Nominator as discussed at the hearing and including:

  • ASIC extract - H&K Panel Works Pty Ltd
  • Accountant Letter – H&K Panel Works Pty Ltd
  • Full Record of ATO Integrated Account - H&K Panel Works Pty Ltd.

• Business lease agreement.

• Training Benchmark payments.

• Evidence of business operations: repair authority from insurance company, various invoices.

• Skill Shortages material regarding ANZSCO position of Motor Mechanic.

1. 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

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

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

1. 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.

2. On the basis of the information in the Department‘s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

3. The application for approval identifies Mr Guocan WANG, the nominee who, according to Departmental records, holds a Subclass 457 (Temporary Work (Skilled)) visa valid from 2 July 2014. The occupation identified in the application is a ‘Motor Mechanic’ (General) (ANZSCO 321211).

4. The Tribunal is satisfied based on the employment contract and other documents for the nominee that the occupation identified is the same occupation as that carried out by him as the holder of the Subclass 457 visa. 

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

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

1. 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.

2. The Department’s records indicate that Total Automotive Service Company Pty Ltd was approved as standard business sponsor first in 2008 and later again in 2012. Department records further indicate that the most recent nomination was approved on 2 March 2016 and that this is valid until 2 March 2021. 

3. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr WANG, in the nomination under s.140GB of the Act and nominated him for a subclass 457 visa.

4. In relation to whether the applicant is actively and lawfully operating a business in Australia, Mr Wu informed the Tribunal at hearing that the applicant business has been operating in Melbourne, Victoria since 2008. The business activities include professional mechanical services and body repairs for a wide range of vehicles. The Tribunal is satisfied from the financial documents provided by the applicant including, inter alia, business bank statements from 2014 – 2019, financial statements 2016 – 2018, company tax returns for 2017 – 2018, Business Activity Statements for 2016 – 2019, and ATO integrated account transaction report, that the applicant is actively and lawfully operating a business in Australia.

5. 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, r.2.59(h) or r.2.68(i).

6. Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is met.

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

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

   ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application (r.5.19(3)(c)(i)); or

   ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application (r.5.19(3)(c)(ii)).

2. In this case, r.5.19(3)(c)(i) is the relevant provision. The nomination was lodged on 26 June 2017. The relevant 3-year period is therefore 26 June 2014 to 26 June 2017. At the hearing, Mr Wu advised that the nominee was initially engaged with the applicant whilst he was a student and had been employed formally by the applicant since July 2014 when his Subclass 457 visa was granted. The nominee was granted a Subclass 457 visa on 2 July 2014 to work in the nominated occupation as Motor Mechanic for the nominator.

3. Evidence provided by the applicant includes business bank accounts, selected payslips of the nominee, the nominee’s PAYG payment summaries for 2018 and 2019, the nominee’s ATO Notice of Assessment for 2015 - 2018, copies of cheque stubs which indicate payment of salary to nominee, the applicant’s ANZ Bank Business Account Statements with the cross referenced cheque stubs, and the nominee’s bank statements which show the deposit of the salary payments made by cheque from the  applicant between 2014 to 2019.

4. In the additional material provided to the Tribunal following the hearing, the applicant’s Director Mr Wu provided a written statement confirming the method of payment to the nominee had for the initial three months of employment in 2014 been by cash and that the payments had been in accordance with the salary requirements for the role. The applicant then commenced paying the nominee fortnightly between 29 September 2014 – 7 September 2018 by cheque (as reference above). Payment to the nominee since 8 September 2018 has been weekly and has been by EFT.

5. Further documentary evidence provided by the applicant to the Tribunal following the hearing shows that the nominee’s base salary was increased in 2017 / 2018 from $52,520 to $56,099 per annum (plus 9.5% superannuation).

6. Whilst the nominee’s superannuation statements show that the applicant has made the necessary superannuation payments as legally obligated across the various years, there was one discrepancy in relation to payments in 2016. Following the hearing, the nominee’s accountant Mr Tan of Kesaco Pty Ltd, advised that in reviewing the payments to the nominee, the 2016 superannuation payment of $2,495 was 50% less than the legislated payment amount. Mr Tan acknowledged there had been an error in superannuation payment to the nominee. He confirmed that the applicant rectified the difference in superannuation payment. Evidentiary documentation provided to the Tribunal confirms that the difference has been paid to the nominee.

7. The Tribunal is satisfied on the evidence now before it that the nominee has been employed full time in Australia in the relevant position for at least 2 years of the 3 years before the nomination was made and therefore the requirements of r.5.19(3)(c)(i) are satisfied.

8. 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)

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

2. The applicant provided financial statements which show as follows:

2016	2017	2018
Income	$693,313	$675,242	$905,093
Payroll Expenditure	$308,925	$240,208	$253,943
⃰⃰⃰ Loan to Director	$694,916	$596,060	$542,806
Profit:	$34,197	$1,623	$58,526

1. In relation to the not insubstantial Director loans to the company, and the marginal profitability of the business as stated in the financial statements,  Mr Wu advised the  Tribunal at hearing that there were a number of reasons for this, including:

(a)the business was forced to relocate because the landlord had sold the property and there were significant relocation and new premises leasing costs; and

(b)the business had significant debts to repay from an associated business known as H&K Panel Works; and

(c)because of the nature of the applicant’s business, it must purchase and hold a large volume of spare parts in order to operate the business.  

1. Mr Wu also explained at hearing that a significant part of the applicant’s business now includes accident repairs and this requires recovery from insurers. He provided documentary evidence in support of this from a legal firm showing that the applicant operates a back-to-back arrangement with the law firm for recovery of third party insurance payments.  As a result, according to its 2018 financial statements, the applicant’s business has increased its turnover / income by 34% and recorded an improved profit result.

2. The applicant provided other information and documentary evidence to the Tribunal following the  hearing including the new lease agreement for the business, ATO running accounts to demonstrate, inter alia, that the company remains financially viable and capable of continuing to employ the nominee in the full time position of Motor Mechanic on a salary of $56,099 plus superannuation, for the next 2 years and that the terms and conditions of employment do not expressly exclude the possibility of extending his period of employment.

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

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

1. 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.

2. The Tribunal has before it the nominee’s employment agreements, including the most recent signed employment contract in respect of the nominee dated 28 May 2019. The Tribunal is satisfied that the employment contract has standard provisions that are consistent with those in the Fair Work Act 2009 (Cth).

3. The applicant provided an organisational chart as at May 2019 showing the employment details and citizen status for its employees. It shows that there are four Australian citizens or permanent residents in the organisation and of those, one who is part time (as opposed to full time like the nominee) performing equivalent work in the same workplace at the same location as the nominee. 

4. The Tribunal accepts that although Mr Wu of the applicant undertakes similar work to that of the nominee from time to time, he is stated on the organisation chart to be a Director and therefore has duties that must be undertaken in addition to his duties in the position of Motor Mechanic.

5. The employment agreement of the nominee for the nominated position was originally dated dated 30 June 2017 for a term of two years. The agreement was renewed on 28 May 2019. The 2019 agreement continues to be current in its essential terms and provides for a salary of $56,099 plus superannuation. The Tribunal is satisfied that the original contract and most recently updated contract for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

6. The applicant provided documents from Seek (dated January and March 2019), which show various advertisements for jobs as a Motor Mechanic in suburban Melbourne. Each shows that the average salary for a full time role is between $50,000- $59,999. This corresponds with the Tribunal’s review online of Payscale and Seek which indicates that a Motor Mechanic in Australia earns in 2019 on average $52,980 or $23.70 per hour.   

7. The Tribunal finds that the nominee’s salary is within the range for the salary expected of a Motor Mechanic noting that the applicant company is small and operating a specialised business. On this basis, the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location

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

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

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 delegate refused the application on the basis the applicant’s nomination did not satisfy r. 5.19 (3)(f)(i)(A) and r.5.19 (3)(f)(i)(B) of the Regulations because the applicant failed to meet training requirements in the period of the nominator’s most recent approval as a standard business sponsor.

3. The applicant must demonstrate that they have continued to meet the training requirement throughout the validity of their sponsorship. The applicant’s most recent standard business sponsorship was approved on 2 March 2016 and is valid until 2 March 2021. The nominator is required to demonstrate that they fulfilled either Training Benchmark A or Training Benchmark B for each anniversary year of the sponsorship agreement. As the application was lodged on 23 June 2017, the delegate assessed the first year of the latest sponsorship agreement held.

4. The training requirements applicable for an established business with approval as a standard business sponsor in the applicable period are set out in written instrument IMMI 13/030. 

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

   • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy

• funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy

• employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

• employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

• evidence of payment of external providers to deliver training for Australian

employees

• on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
• the learning outcomes of the employee at each stage;
• how the progress of the employee will be monitored and assessed;
• how the program will provide additional and enhanced skills;
• the use of qualified trainers to develop the program and set

assessments; and

• the number of people participating and their skill/occupation

1. However, it does not include expenditure on training that is:

• delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’

• confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity

• only undertaken by persons who are not Australian citizens or permanent residents

• only undertaken by persons who are principals in the business or their family members

• only relating to a very low skill level having regard to the characteristic and size of the business.

1. The  delegate assessed the material submitted by the applicant and determined that in relation to:

   (a)  Training Benchmark A:

   The applicant failed to provide evidence to demonstrate expenditure amounting to at least 2% of their payroll on the provision of training Australian citizens and/or Australian via a monetary contribution to an Industry Training Fund in the sponsorship year of 2 March 2016 - 2 March 2017.

   Although payment of $4700 was paid by the applicant to the Kangan Institute, it was not within the sponsorship year and hence, the nominator had failed to demonstrate that they met the requirement of Training Benchmark.

   (b)  Training Benchmark B:

   The delegate accepted evidence that training had been provided to an Australian citizen/permanent resident employee, however the training was not completed within the required sponsorship period.

   The applicant provided an ANZ bank lodgement receipt demonstrating payment (tax invoice and receipt) of $3100 to McKkr's Training dated 26 May 2017.

   The training was provided by McKkr's Training (Pty Ltd) as evidenced by the Training Plan for Fu Zhang, an Australian Permanent Resident employee.

   As all the documents provided were dated in May 2017, outside of the assessed sponsorship period of 02 March 2016 – 02 March 2017, the Department found that, the applicant did not fulfil the training requirement for the period of 2 March 2016 – 2 March 2017. Consequently, the applicant did not meet the requirements of Training Benchmark B.

2. The Tribunal is advised that this is the third standard business sponsorship of the applicant. On that basis, it is the Tribunal’s view that the applicant would be expected to be fully cognisant and alive to its obligations and requirements in regards to the Training Benchmark payment requirements.

3. The Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3), which constitutes policy guidelines for its decision-makers. PAM3 states that the requirements of r.5.19(3)(f) may be disregarded if it is reasonable to do so. In Hneidi v MIAC [1], Besanko J held that the task of the Tribunal is to make the correct or preferable decision on the material before it. The Tribunal may take into account a policy. The weight to be placed on a policy is a matter for the Tribunal to determine.

   [1] Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].

4. Whether the Tribunal should apply that policy or interpretative guidelines in a particular case will depend on a range of factors, including whether it is exercising a discretionary or non-discretionary power and whether the nature of the power suggests an emphasis on consistency or a focus on the circumstances of the individual case. 

5. PAM3 indicates that a decision-maker, including the Tribunal, may have regard to whether the nominator has demonstrated meeting a combination of both Training Benchmark A and B in a required year during the term of the most recently approved sponsorship, or if the nominator has an aggregate expenditure on training over the term of their most recently approved sponsorship commensurate with the total training commitment for that period. The applicant’s obligation commences on the day of approval of the standard business sponsorship. In this case, the applicant’s standard business sponsorship was approved on 2 March 2016, which is the commencement of the fourth trading quarter of the financial year.

6. The applicant, in submissions to the Tribunal prior to hearing, at hearing and subsequently following the hearing, acknowledged to the Tribunal that it had erred and failed to make the necessary payments due to a lack of oversight on its part in relation to significant dates by which payments had to be made. That said, upon realising the error, the applicant advised that it took the necessary steps to correct the oversight and make the payments and provided the necessary documentary evidence in support to the Tribunal.

7. Having regard to the  requirements of IMMI 13/030, and in relation to payments made by the applicant towards the Training Benchmark obligations, the documentary evidence ⃰before the Tribunal indicates as follows:

   ( ⃰ bold font to indicate which Training Benchmark the applicant has claimed to meet in a given financial year)

Financial Year ⃰	2016/17	2017/18	2018/19	Total
Payroll	$308,925	$240,208	$253,943
Training Benchmark A: 2%	$6178.50	$4804.16	$5078.86
Training Benchmark B: 1%	$3089.25	$2402.08	$2539.43
Total Training Expenditure  required	$10,432.84
Actual Training expenditure	$3,100 McKKr’s Training Benchmark B	$4,700 Kangan Institute Training Benchmark A	$3,000 (allegedly paid 2/19) Newton College Training Benchmark B: as no verifiable proof – disregarded)
$3,000 (paid  9 / 19) Newton College Training Benchmark B: proof of payment provided: accepted.
Proof of payment	Yes	Yes	(1): No (2): Yes	$10,800
Training applied to Australian / resident	Yes	N/A	Yes
IMMI 13/30	paying for a formal course of study for the business’s employees	N/A	paying for a formal course of study for the business’s employees

1. The Tribunal is satisfied that payments made to McKKr’s and Kangan noted above are verifiable. However, the payment of $3,000 to Newton in February 2019 is in the view of the Tribunal, not verifiable and therefore, the Tribunal has not counted it towards Training Benchmark B for 2018/19. The applicant asserted at hearing and in material provided, that it had paid the $3,000 in February 2019 as part payment of a full fee required of $6,000 for the Diploma of Business to Newton College. However, as there is no corresponding amount in the business bank statements or any other verifiable documentary evidence provided, the Tribunal has disregarded the $3,000 payment allegedly made in February 2019.

2. When asked by the Tribunal to substantiate the payment of the  $3,000 in February 2019 and to provide a response as to why the balance of $3,000 for the Diploma of Business at Newton College had not been paid, the applicant responded to the Tribunal with the following:

   (a)  statement to claim that the February 2019 payment of $3,000 was a cash payment;

   (b)  ANZ Internet Banking payment for $3,000 to Newtown College on 19 September 2019;

   (c)  receipt of payment from Newton College for $3,000 dated 19 September 2019; and

   (d)  an updated Statement of Attainment from Newton College in relation to four subjects completed as at 15 September 2019 by employee Hangfang Chen.

3. The Tribunal finds the claim in relation to payment by cash in February 2019 is implausible. However, as the applicant has provided verifiable evidence to prove the recent payment of $3,000 to Newton College under Training Benchmark B has now been paid, the Tribunal is now satisfied that the applicant has met its obligations to making the payments required under the Training Benchmarks provisions in IMMI 13/030 for the last three (3) financial years.

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

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

1. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

2. At hearing, Mr Wu disclosed to the Tribunal that  the applicant had previously had an outstanding ATO debt. Following discussion of the issue at hearing, the applicant undertook to provide, and subsequently delivered, to the Tribunal a complete ATO Integrated Account (2008 - 2019).

3. In addition, a letter from the applicant’s accountant, Mr Tan of Kesaco Pty Ltd, confirmed that the applicant had an outstanding debt of $29,694.85 to ATO as at 24 November 2012.  Mr Tan advised that the applicant had paid the ATO obligation in full by 18 October 2013, and confirmed to the Tribunal that the applicant does not have any outstanding debts with the ATO.

4. Based on the documentary evidence provided, the Tribunal has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator. 

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

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

1. 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.

2. The applicant advised the Tribunal at hearing that it had complied with the laws of the Commonwealth, and of Victoria. The Tribunal can find nothing in the Department’s records or those of the Fair Work Commission to indicate that the applicant does not have a satisfactory record of compliance in relation to workplace law and workplace relations.

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

4. 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

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

S. Jones
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.