TRIPLE ONE GROUP AUSTRALIA PTY LTD (Migration)

[2022] AATA 895

TRIPLE ONE GROUP AUSTRALIA PTY LTD (Migration) [2022] AATA 895 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TRIPLE ONE GROUP AUSTRALIA PTY LTD

REPRESENTATIVE:  Ms Jing SUN (MARN: 1066431)

CASE NUMBER:  1905654

HOME AFFAIRS REFERENCE(S):          BCC2017/2002661

MEMBER:Karen McNamara

DATE:31 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 31 March 2022 at 3:58pm

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – Temporary Residents Transition Nomination stream – position of Marketing Specialist – evidence of meeting training obligations – actively and lawfully operating a business in Australia – employed in the position for at least 2 years previously – terms and condition no less favourable – ongoing training contribution charge payments – decision under review set aside  

LEGISLATION

Migration Act 1958, s 245
Migration Amendment (Skilling Australians Fund) Act 2018
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 1.20, 2.87, 5.19

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 1 March 2019 to reject the application by Triple One Group Australia Pty Ltd for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 6 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).

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) of the Regulations because the applicant did not provide sufficient evidence to support that it fulfilled commitments made in relation to meeting training requirements during the period of the applicant’s most recent approval as a standard business sponsor.

5. The applicant applied to the Tribunal on 11 March 2019 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.

6. On 22 March 2022, the applicant represented by Mr Bowen Zheng (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ruoming Tong (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1908980). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. At the conclusion of the hearing, the Tribunal invited the applicant to provide further evidence to support payment of training invoices pertaining to meeting training requirements during the period of the applicant’s most recent approval as a standard business sponsor.

10. On 25 March 2022, additional evidence to support the applicant’s training expenditure was received by the Tribunal.

11. 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

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

    Background

13. ASIC records provided by the applicant to the Tribunal, show that the company was registered on 23 April 2012. The applicant operates a real estate agency located in the Sydney CBD.

14. On 6 June 2017, the applicant lodged an application for an employer nomination for the occupation of Marketing Specialist (ANZSCO 225113) under the Temporary Residence Transition nomination stream. The nominated salary is $65,000 per annum plus superannuation.

15. The applicant sponsored Ms Ruoming Tong for her Subclass 457 Visa, which Department records confirm that she held at the time of the nomination application.

16. Department records show that the applicant was most recently granted approval as a standard business sponsor (SBS) on 6 February 2015 to 6 February 2018.  

17. Department records show that the nominee was granted a 457 Visa on 20 April 2015 Evidence provided to the Tribunal indicates that the nominee commenced full time employment with the applicant in May 2015, in the position of Marketing Specialist.

18. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant.  While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

    The application must be compliant: reg 5.19(3)(a)

19. 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.

20. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly, the requirements of r.5.19(3)(a)(i) are met.

21. The application for approval identifies Ms Ruoming Tong who according to Department records, was granted a subclass 457 Visa on 20 April 2015, on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly, the requirements of r.5.19(3)(a)(ii) are met.

22. The occupation identified in the application is Marketing Specialist (ANZSCO 225113). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment and Department records, that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four digit code as the occupation carried out by the nominee whilst she held the Subclass 457 Visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.

23. As the criteria in r.5.19(3)(a)(i), r.5.19(3)(a)(ii) and r.5.19(3)(a)(iii) are satisfied, accordingly the requirements in r.5.19(3)(a) are met.

    Status of the nominator: reg 5.19(3)(b)

24. 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.

25. The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 6 February 2015 to 6 February 2018.

26. The applicant has provided to the Tribunal copies of BAS returns and financial records recording the business has income from sales commission and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from operating a real estate business. ASIC records before the Tribunal confirm that the business name is registered.

27. Based on information before the Tribunal including ASIC information, financial documents, and the applicant’s oral evidence, the Tribunal is satisfied that the applicant (nominator) is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.

28. Given the above, the requirement in r.5.19(3)(b) are met.

    Previous employment of the nominee: reg 5.19(3)(c)

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

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

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

30. Evidence before the Tribunal shows that the nominee was granted a subclass 457 Visa on 20 April 2015 and has continued to be employed by the applicant on a full time basis in the occupation of Marketing Specialist since May 2015. The applicant has provided copies of the nominee’s ATO PAYG’s/Income Statements, Notice of Assessments (NOA’s) and bank statements confirming that the nominee, during the term of her employment with the applicant, has been paid the full-time salary of $55,000 per annum. The applicant has also provided a copy of the nominee’s employment agreements dated 1 January 2018, 1 January 2020, and 18 January 2022.

31. Based on this evidence, the Tribunal is satisfied the nominee has been employed in a full time capacity by the applicant as a Marketing Specialist (as indicated at the hearing) since May 2015 whilst holding a Subclass 457 visa. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.

32. Given the above findings, the requirement in reg 5.19(3)(c) is met.

    Future employment of the visa holder: reg 5.19(3)(d)

33. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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.

34. The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Marketing Specialist (ANZSCO 225113). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the applicant must satisfy the requirements of r.5.19(3)(d).

35. In considering whether the business has the financial capacity to pay the nominee the nominated full-time salary of $65,000 per annum for two years, the Tribunal has taken into consideration evidence before it, including the business’s consolidated financial statements for the 2019/20 and 2020/21 financial years and documents submitted to the ATO which show the applicant has met payroll and operating costs since July 2018.

36. The Tribunal has also taken into consideration the nominee has been continuously employed by the applicant on a full-time basis since May 2015. The nominee’s bank account statements and PAYG’s support the nominee has received remuneration of $55,000 per annum plus superannuation.  

37. At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on the business. The applicant told the Tribunal that due to strict lockdowns and limited property viewings the business struggled during the last two years. However, since restrictions have been lifted, the boom in the Sydney property market is contributing to an increase in property listings and sales commission revenue.

38. The Tribunal has afforded consideration to the financial evidence before it, including the explanation afforded by the applicant as to reported losses recorded in the company 2021 financial statements. In consideration of all the evidence before it, the Tribunal has formed the view that on balance, the evidence before it, suggests that the nominee (the person) will be employed on a full time basis in the position for at least 2 years.

39. Accordingly, the requirement in r.5.19(3)(d)(i) is met.

40. The Tribunal has had regard to the most recent employment agreement dated 18 January 2022. The contract sets out the terms and conditions of employment and indicates that the period of employment is ongoing full-time employment. The terms and conditions of employment do not preclude the possibility of extending the period of employment. The contract stipulates the salary is $65,000 per annum plus 10% superannuation with hours of work 38 hours per week.

41. The Tribunal is satisfied based on the employment agreement dated 18 January 2022 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

42. Accordingly, the requirement in r.5.19(3) (d) (ii) is met.

43. As the criteria in both r.5.19(3)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(3)(d) are met.

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

44. 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.

45. The Tribunal has had regard to the employment agreement dated 18 January 2022. The contract provides the nominee’s leave entitlements as per standard provisions. The contract stipulates the remuneration is $65,000 per annum plus 10% superannuation with hours of work 38 hours per week.

46. The Tribunal has taken into consideration evidence before it, including the nominee’s PAYG’s, superannuation statements and bank statements and is satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.

47. The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the 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.

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

    Training commitments and obligations: reg 5.19(3)(f)

49. 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.

50. The applicant was most recently approved as a Standard Business Sponsor on 6 February 2015 to 6 February 2018. Evidence before the Tribunal shows the applicant has sought to establish compliance during this period with the training requirements under Training Benchmark B.

51. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) (i) of the Regulations because the delegate considered training expenditure in respect to persons engaged by the applicant on a commission payment basis could not be counted towards meeting the training benchmarks. The delegate further found that there was no reason identified to disregard r. 5.19(3)(f)(i).

52. The Tribunal notes that a more comprehensive suite of evidence was presented to it, than that provided to the delegate in the original application. The Tribunal has also had the benefit of discussing with the applicant the employment status of persons engaged on a commission basis. The Tribunal additionally notes Department Procedures Advice Manual (PAM 3) re: Division 5.3/ Regulation 5.19 -Approval of nominated positions titled section “Payroll”, notes as follows ‘If payments to contractors are included as payroll expenditure, any eligible training expenditure in respect of the contractors may also be counted towards meeting the benchmarks.’

53. On the basis of the evidence before it, the Tribunal has therefore formed a different view to the delegate and accepts the evidence presented by the applicant in support of satisfying    r. 5.19(3)(f)(i).

54. The Tribunal notes that when the nomination application was lodged on 6 June 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. A transitional provision (cl 7602(5) of Schedule 13 to the Migration Regulations 1994) introduced by the SAF Regulations exempts a SBS from complying with the repealed reg.2.87B in relations to a period of 12 months ending on or after 12 August 2018.

55. The relevant sponsorship period was established during the hearing as 6 February 2015 to 6 February 2018.

56. The Tribunal has considered the applicant’s evidence in support of payroll expenditure and training expenditure for each period of the term of approval as a sponsor and benchmark B requirements. This is summarised in the table below:

Period of sponsorship	Payroll	1%  (Benchmark B requirement)	Training Expenditure
6 Feb 2015 to 5 Feb 2016	$293,373	$2,933	$1,000
6 Feb 2016 to 5 Feb 2017	$395,348	$3,953	$495
6 Feb 2017 to 6 Feb 2018	$150,845	$1,508	$6,000
Total		$8,394	$7,495
Post requisite payments
29 June 2018	McKkrs	$3,190
24 May 2019	TAFE	$4,000
10 June 2020	TAFE	$4,200
Total		$11,390

1. The Tribunal finds on the evidence before it, the applicant has met the training requirements for the third period of sponsorship. However, receipts pertaining to periods one and two, show payments below the requisite amounts.

2. At the hearing the applicant told the Tribunal that payments were made as per invoices provided by the training providers and that the applicant made the payments in good faith according to the training plans submitted by the providers. The Tribunal notes that outside of the requisite periods, the applicant continued to make additional payments totaling $11,390.

1. The Tribunal notes that the payments made by the applicant in two of the requisite periods were below the required amounts, therefore the applicant did not fulfil its commitment relating to training and did not comply with its sponsorship obligations in the relevant periods. Consequently, the applicant does not meet the requirements in r.5.19(3)(f)(i). As such, consideration must be given to whether it is reasonable to disregard the training requirements.

2. The Tribunal has considered the submissions and evidence before it and considers that it is reasonable to disregard the training requirement in this case. On balance, given the evidence of ongoing training contribution payments by the applicant, the Tribunal considers it is appropriate to disregard the requirement in r.5.19(3)(f)(i) in view of the applicant's overall commitment to training.

3. Given the above, the Tribunal finds that r.5.19(3)(f)(ii) is met and accordingly, the applicant meets the requirement in r.5.19(3)(f).

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

4. 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 regs 1.13A and 1.13B.

5. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and notes that there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration within the meaning provided in r.1.13A and r.1.13B.

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

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

7. 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.

8. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

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

10. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Karen McNamara
    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.