VQN CORPORATION PTY LTD (Migration) - [2020] AATA 2715

VQN CORPORATION PTY LTD (Migration) [2020] AATA 2715 (2 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  VQN CORPORATION PTY LTD
CASE NUMBER:  1808629
DIBP REFERENCE(S):  BCC2016/2008068
MEMBER:Stavros Georgiadis
DATE:2 July 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 02 July 2020 at 1:47pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – direct entry nomination stream – satisfactory compliance with workplace relations laws – wages and superannuation – superannuation contributions less than statutory requirements – no evidence that underpayments remedied – previous warning by department about inadequate record-keeping – changes to practices – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(g)
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 Immigration on 8 March 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 10 June 2016. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii) of the Regulations because the delegate was not satisfied that the tasks to be performed by the nominee correspond to the tasks of an occupation listed on the relevant instrument relevantly, Café or Restaurant Manager (ANZSCO 141111).
The applicant’s current sole Director, Mr Vincent Quang Nguyen, appeared before the Tribunal on 17 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position of Restaurant Manager, Mr Ngoc Bao Toan Vu together with his spouse Ms Thi Thuy Huyen Nguyen, who are applicants in the related AAT casefile 1820470 refusing their Subclass 187 visas. The related matters were heard together in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter of the Vietnamese and English languages.
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 the hearing by telephone, having regard to the nature of the matters and the individual circumstances of the applicants. 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 was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The accepted oral evidence is that the applicant employs all its workers in the State of South Australia.
The applicant provided detailed written submission in support of the application. Following the hearing, the applicant provided further written submissions under cover email dated 16 April 2020 addressing certain issues raised at the hearing - as follows:
12.“… The term “satisfactory record” is not defined in legislation. The discretionary nature of regulation 5.19(4)(g) along with the lack of legislative guidance, gives the Tribunal scope to consider relevant policy guidelines and to consider the term in accordance with its ordinary and natural meaning. The Oxford Dictionary provides for a lesser standard associated with the term ‘satisfactory’ as its meaning is synonymous with: ‘fulfilling expectations or needs; acceptable, though not outstanding or perfect’. The term is similarly defined by the Cambridge Dictionary as “good or good enough for a particular need or purpose”. The common and ordinary interpretation of “satisfactory” in the context of this provision, clearly does not require an absolute or perfect record of compliance.
13.The ‘Assessment’ section of departmental policy states the following¹:
14.Delegates can consider the nominator to have satisfied the requirements of regulation 5.19(3)(h) or 5.19(4)(g) (as relevant) unless they have received information that suggests the employer has not complied with workplace relations laws. The Department of Employment regularly provides this department with a list of employers who have been prosecuted for a breach of workplace relations laws or who the Department of Employment believes to have breached workplace relations laws but prosecution was either unwarranted or not possible.
15.Current and former employees and members of the public can be alternative sources of information concerning the employer’s failure to comply with workplace relations laws.
16.In assessing whether the nominator meets the requirements of 5.19(4)(g), departmental policy guidelines state that the requirement can be considered satisfied unless the decision maker has received information that suggests the employer has not complied with workplace relations laws. Due weight should be given to the fact that there has been no such information from a third party indicating the nominator has been subject to an investigation, penalty or any other legal proceedings by relevant regulatory bodies namely the Australian Taxation Office, Australian Securities and Investments Commission or Fair Work Commission.
17.Migration and Refugee Division (MRD) Commentary provides the following guidance²:
18.The term ‘workplace relations laws’ is not defined in the legislation, but appears to contemplate a wide range of laws relating to an employer’s duties and obligations in the workplace. They would include an employer’s compliance with State/Territory and Commonwealth laws relating to:
• National Employment Standards
• pay (minimum wages, deductions, superannuation, penalty rates and allowances)
• leave (annual leave, sick leave, long service leave and maternity leave)
• employee entitlements (maximum hours, overtime, flexible arrangements and breaks)
• Workplace Health & Safety (safe workplaces, bullying and harassment)
• workplace discrimination
• termination (redundancy, unfair dismissal)
19.Further to this, MRD Commentary provides useful and significant analysis on what constitutes a ‘satisfactory record’ of compliance with workplace relations laws (emphasis added)³:
20.The term ‘satisfactory record’ is not defined in the Regulations. On its face it appears to be a subjective test that does not contemplate or require a perfect record of compliance. Dictionary definitions of ‘satisfactory’ vary from ‘fulfilling all demands or requirements’ to ‘acceptable, though not outstanding or perfect’. In Nice Shoes Aust Pty Ltd v MIMIA, the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in training requirement for standard business sponsors in the since repealed r.1.20D(2)(c)(ii). In that case, the Court observed that the difficulty with such a definition is that it provides no measure or standard against to determine whether something is ‘satisfactory’. Looking to the broader context of r.1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia. Critically, the Court observed that the relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant had such a satisfactory record.
21.This suggests that in this context, the criterion would not necessarily require the employer to demonstrate a ‘blemish-free’ record of compliance with workplace relations laws. Instead, the level of compliance by the employer may instead be of such a level to satisfy the decision maker that the employer will be able to fulfil its workplace obligations to the employee such that the nomination should be approved.
22.There is also some support in Departmental policy and operational guidelines for such an approach. While the guidelines are brief on the interpretation of what constitutes a ‘satisfactory record of compliance’, related guidance can be found in the context of the Subclass 888 Business Innovation and Investment visa and the very similarly worded cl.888.214 which requires the visa applicant to have a ‘satisfactory record’ of compliance with certain Australian laws.
23.In assessing that criterion, policy suggests a fair and reasonable approach in assessment of this criterion should be applied in all cases. It states that the requirement is not intended to be applied in every instance of a breach of Australian law and that ‘minor breaches’ of the law, or a single more serious breach, may be disregarded, especially if the applicant can demonstrate that the breach has been rectified and there has been no recurrence of the breach for a reasonable period.195 The Department’s guidelines suggest some leniency may be appropriate in the first instance if it can be reasonably expected that the applicant may not have been fully aware of their Australian legal obligations, albeit subsequent breaches would not be considered with such leniency, in particular if the applicant had been made aware of the earlier breach by a relevant authority.196 Again, while the policy arises in a different context, the balancing factors identified would seem equally applicable in the assessment of compliance in the workplace relations context.
24.The Explanatory Statement accompanying the Migration Amendment Regulations 2005 (No. 1) which introduced regulation 5.19(4)(g), provides that the purpose of the new provisions are to “enhance the integrity of the ENS and RSMS visas, in particular by requiring employers to have a satisfactory record of compliance with immigration law and relevant workplace relations law.” The particularly wide scope of workplace relations laws heavily signifies the purpose of this provision was intended to disqualify applicants who demonstrated serious and/or recurrent non-compliance with laws concerning workplace relations and would thus be likely to exploit or mistreat the nominee.
25.In Re Drake and Minister for Immigration and Ethnic Affairs (No 2), Brennan J emphasised the import of consistency in decision making, and concluded that while the AAT is an independent body, policy should generally be applied unless the policy is unlawful or there are “cogent reasons to the contrary”.⁴ The MRD commentary is in accordance with policy guidelines which themselves provide for consistency and equality of treatment, and thereby assists the Tribunal in making consistent decisions. It has now become accepted practice for the Tribunal to apply lawful policy unless there are cogent reasons to the contrary.
26.The Tribunal may err into legal error where a misunderstanding of the requirements of subsection 5.19(4)(g), would consequently limit its consideration of the facts. Severe detriment would arise in terms of the nominator’s business interests and ongoing operations were there to be an error in the interpretation of the provision and its application to the facts. Interpretation of key terms (i.e. “satisfactory record”) turns on the context of the legislative enactment in question, rather than solely considering the meaning attributed to the words in isolation.
27.Against this background and in light of relevant commentary and policy guidelines, a fair and reasonable approach ought to be taken in the assessment of this criterion. It is neither necessary for the Tribunal to consider whether the nominator has at some point ever breached any workplace relations law of the Commonwealth/State, nor is it a definitive factor. While an applicant’s breach(es) of workplace laws may be considered, it does not necessarily follow that the nominator cannot meet the requirement of satisfactory compliance. As previously conveyed by the Federal Court, a satisfactory record of compliance does not necessarily require an unblemished record and decision makers must have regard to the pertinent facts of the case.⁵
28.Indeed the High Court of Australia has ruled that “where statute confers a power, Parliament is taken to intend that that power will be exercised reasonably”.⁶ With regards to the legal standard of satisfaction to be met in connection with regulation 5.19(4)(g), we submit the intended meaning and correct approach to an assessment of ‘satisfactory’ in the context of 5.19(4)(g) is reasonable satisfaction. The standard ought to be objective, in that it would be met if a reasonable person in the Tribunal’s position would be satisfied that the nominator has an acceptable or sufficient record of compliance with Commonwealth or State laws pertaining to workplace relations.
29.The relevant level of satisfaction requires the Tribunal to reach an affirmative belief that the nominator has satisfactorily and materially complied with the laws of the Commonwealth and State or Territory in which it operates a business and employs employees in the business. On a fundamental basis, it surely was not legislative intention for a nomination to be refused in circumstances where there has been an inadvertent, minor or singular breach given that ‘workplace relations’ laws encompass such a broad scope with many different sections of Commonwealth and State laws. Minor breaches or those that constitute a single and non-recurring breach, should be reasonably disregarded in this assessment.
30.We respectfully submit that the Tribunal’s purpose is to make the correct or preferable decision on the evidence at hand, rather than to make arbitrary or precipitous adverse findings in terms of the nominator’s compliance with Commonwealth and State workplace relations laws - especially when these findings would be directly contrary to the nominator’s own testimony and/or would be made in the absence of prevailing evidence. The absence of appropriate reasons to support such a finding may be deemed as amounting to a failure to properly consider the case and the question to be determined. More importantly, the Tribunal should consider the evidence which supports the nominator’s assertion that it has a satisfactory record of compliance with workplace relations laws.
31.The relevant and appropriate question to consider is whether the level of compliance demonstrated by the nominator, is of such a level that the Tribunal is satisfied the employer will be able to fulfil its workplace obligations to the nominee. In this case, a search of decisions and orders on the Fair Work Commission website yields no results for the nominator. Similarly, searches of South Australian Employment Tribunal decisions do not reveal any instances of non-compliance related to VQN Corporation Pty Ltd or Mobara Japanese Restaurant (the business which it operates).
32.Further to this, there is no documentary record of the Fair Work Ombudsman having conducted any investigations or proceedings, recovered any monies, issued any caution/infringement notices or implemented any enforcement actions against the nominator. Ultimately, there is no third-party evidence to suggest the nominator has been found to be in breach of any laws of the Commonwealth or State relating to workplace relations, award breaches or underpayment of award wages. We therefore submit that there is there is no concrete or verifiable information before the Tribunal that demonstrates past or current substantive breaches, which would indicate the applicant does not have a satisfactory record of compliance with laws relating to workplace relations.
33.The Tribunal may recall that Mr Vincent Nguyen, Director of VQN Corporation Pty Ltd, confirmed the company utilises software (MYOB) and engages the services of a bookkeeper/payroll officer in conjunction with an accountant (Van Hoc & Associates) to ensure payroll is processed in an accurate and timely manner. Mr Nguyen attests to the fact that super guarantee contributions for employees (whether full-time, part-time or casual) are automatically populated when their wages are entered in the system. The critical consideration in this case is that there is no information or evidence available to demonstrate VQN Corporation Pty Ltd has not been substantially compliant with Australian workplace laws and regulations. All eligible employees have been paid the required superannuation amounts to their designated super funds, and there have been no investigations or findings made by the Australian Taxation Office or Fair Work Commission in relation to its compliance with workplace relations laws.
34.Accordingly, we submit that the requirements of regulation 5.19(4)(g) are satisfied.
35.With regards to regulation 5.19(4)(e), we note the Tribunal previously enquired about the base salary of any employee who had worked in the Restaurant Manager position prior to the nominee. Due to the length of time that passed, the director was unable to confirm exact details during the hearing. Having since sought and obtained clarification, Mr Nguyen kindly advises that Mr Joe Tropeano (the former business owner and proprietor) had not been engaged to work in a formal capacity. As part of negotiations for the business agreement, an informal and verbal arrangement was made for Mr Tropeano to help out with the restaurant’s management in the early stages of the ownership change. This assistance was voluntarily given to the nominator by Mr Tropeano based on his availability; he did not work set hours on an ongoing basis. The director reiterates that the terms and conditions of employment, including base salary, applicable to the position are no less favourable than that which would have been provided to an Australian citizen or permanent resident performing equivalent work at the same location.
36.As such, we submit that the requirements of regulation 5.19(4)(e) are met. …”
1 Procedures and Advice Manual 3: Div5.3/reg5.19 – Approval of nominated positions (employer nomination) “Compliance with workplace relations laws”.
2 Commonwealth of Australia, ‘Migration and Refugee Division Commentary Business visas’ 29 <
3 Ibid 102-103.
4 (1979) 2 ALD 634.
5 Nice Shoes Aust Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 252.
6 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [26] and [29] (French CJ).
_________________________________________________________________________

The Tribunal has had regard to all the evidence presented in this matter and the written submissions provided in support of the application including those further written submissions set out above provided after the hearing.
The applicant is a café / restaurant business trading as Mobara Japanese Restaurant in South Australia. Mr Vincent Nguyen has been the sole Director of the company since February 2015. The business trades 7 days per week.
The accepted oral evidence from the applicant is that he has 6 employed salaried persons in the business (including himself) engaged over the past 5 years whilst he has been the Director, on the annual wages set out below as stated in his oral evidence:
Director / Owner (V Nguyen)             $27,000 pa                 Part time
Restaurant Manager (NBT Vu)         $53,900 pa                 Full time
Assistant Manager (MH Pham)         $53,800 pa                 Full time
Head Chef (GH Le)  $53,900 pa                 Full time
Chef / Cook (DV Huang)                   $47,800 pa                 Full time
Chef / Cook (MLH Nguyen)               $43,000 pa                 Full time
The applicant stated that in addition to the above 6 staff members, the business engaged 7 casual staff, making a total of 13 personnel in the business. The applicant’s oral evidence is that the 7 casuals comprise of 3 waiting staff plus 4 kitchen hands to assist the chefs / cooks. When asked about the hours worked by these casual staff, the applicant told the Tribunal that the casuals work on average, between 20 and 25 hours per week, but that the minimum hours worked by any casual staff member would be at least 30 hours in any month. The applicant stated, when asked, that he pays the casuals $26 per hour plus a 25% casual loading [equating to $32.50 per hour].
The Tribunal notes the business trades 7 days a week and provides breakfast, lunch and dinner service. The Tribunal accepts the applicant’s oral evidence discussed above relating to wages paid as this is broadly consistent with the size and 7 day nature of the business described and also the organisational chart provided regarding personnel engaged in the business, together with the available financial records of wages and salaries paid. The applicant told the Tribunal, when asked about any pay increases, that there had not been any increase in wages paid over the last 5 years. The Tribunal accepts the applicant’s oral evidence that no casual employee was engaged for less than 30 hours in any month at $26 per hour plus casual loading of 25%. At a minimum of 30 hours in any month, this equates to $975 for a month’s work [$32.50 per hour x 30 hours]. The oral evidence is that very occasionally a casual may be required to work 8 or more hours in a day. This monthly pay rate is greater than the minimum threshold of $450 per month above which superannuation becomes payable to the employees.
At the hearing, the applicant confirmed, when asked, that the Profit and Loss (P&L) statements for the years ended 30 June 2017 and 2018 were complete and correct as these had been prepared by the business’ accountant for tax and compliance purposes. The applicant also confirmed, when asked, that there were no changes or amendments made and that the financial statements / returns had been lodged with the Australian Taxation Office (ATO). For this reason, the Tribunal places weight on the financial statements and in particular, the P&L statements for the years ended 30 June 2017 and 2018 and accepts these as complete and accurate.
The Tribunal has had regard to the Regional Certifying Body (RCB) Certificate dated 21 July 2016 , noting the Department of State Development SA is ‘satisfied’ with those matters certified on the RCB Certificate. The Tribunal has also had regard to the aforementioned P&L financial statements provided to the Tribunal. For the 2017 financial year the P&L statement shows total wages and salaries paid of $324,410, and $434,390 paid for the 2018 financial year. The P&L statement for 2017 records $24,504 superannuation contributions for that financial year against wages and salaries paid of $324,410 which is less than the federal legislation (Super Guarantee) requirement of 9.5% or $30,818. For the following year 2018, the wages and salaries paid were $434,390 and superannuation contributions of $27,814 are recorded which again, falls short of the 9.5% threshold of $41,267. For the most recent completed financial year 2019, the P&L statement records $35,548 in superannuation contributions made against total wages recorded of $394,007. Although the superannuation appears slightly short paid, the Tribunal considers this may substantially comply with the Superannuation Guarantee 9.5% requirement of $33,490 for that year and accordingly, the Tribunal draws no adverse finding for this issue relating to the 2019 financial year.
At the hearing, the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that the required Superannuation Guarantee minimum of 9.5% on wages and salaries payroll for the 2017 year of $324,410 equates to $30,818, and that the $24,504 superannuation recorded falls short of the legislated Superannuation Guarantee amount due. The Tribunal also put to the applicant that for the 2018 financial year, the required Superannuation Guarantee minimum of 9.5% on wages and salaries of $434,390 equates to $41,267 and that the $27,814 superannuation paid falls well short of the legislated Superannuation Guarantee requirement of 9.5% of applicable wages and salaries.
The Tribunal invited the applicant, in accordance with s.359AA, to comment or respond to the above adverse information that would be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained that this was regarding this issue of the non- compliance with the Superannuation Guarantee requirement, in breach of industrial laws of the Commonwealth, and the State of South Australia, in which the applicant operates a business and employs employees in the business, relating to workplace relations. The applicant was also advised that the Tribunal would consider any request for additional time to comment or respond, if so requested.
The applicant responded forthwith to the above and explained that he relies on his accountant and a book-keeper to administer financial matters including processing of wages/salaries and superannuation payments. The applicant reiterated ‘we process our wages through MYOB software and relevant super has been made according to that software’. The applicant responded, when asked, that he was aware that superannuation is not payable on overtime or casuals earning less than $450 per month. The Tribunal places weight on, and accepts the applicant’s aforementioned oral evidence, that there has been no casual employee engaged in the business being paid less than 30 hours per month. In this regard the Tribunal accepts that, at $26 per hour plus casual loading of 25%, a minimum of 30 hours in any month equates to $975 [$32.50 per hour x 30 hours]. This results in more than $450 per month which is the threshold minimum level remuneration above which Superannuation Guarantee contributions become payable for those employees.
The Tribunal has had regard to the evidence and submission that the company uses MYOB software and engages the services of a bookkeeper in conjunction with the applicant’s accountant, Van Hoc & Associates, to ‘ensure payroll is processed in an accurate and timely manner. Mr Nguyen submitted that Superannuation Guarantee contributions for employees (whether full-time, part-time or casual) are automatically populated when their wages are entered in the system. However, this is not borne out by the applicant’s own oral evidence provided to the Tribunal in respect of the issue of superannuation (under) paid for wages in financial years 2017 and 2018. In this regard, the Tribunal put to the applicant that the superannuation payable on just the 5 salaried full time employees (together with the applicant as part time owner / Director) applies to annual wages and salaries of $279,400 for those 6 persons. The superannuation payable on these wages and salaries alone, at 9.5% is $26,543, and that figure is before any superannuation is applied for the 7 casual staff in the business (which at $975 per month minimum earnings for each casual member would equate to several thousand more due as superannuation). This is to be contrasted with the superannuation paid of $24,504 in 2017 and $27,814 in 2018.
The Tribunal accepts the submission that there have not been investigations or findings made by the Australian Taxation Office or Fair Work Commission / Ombudsman in relation to compliance by the applicant with workplace relations laws regarding its employees, but this alone is not dispositive of the issue of compliance with such laws. At the hearing the applicant confirmed in his oral evidence that from July 2017, investigations had been conducted regarding monitoring of the applicant’s sponsorship obligations. The applicant told the Tribunal that the monitoring activity resulted in a warning issued by the Department to the applicant on 6 February 2018 about inadequate record keeping practices including those relating to records for payment of wages to employees by cash. The applicant said that this practice had changed to payment of wages by bank transfers, which according to the applicant’s written submissions of 13 February 2020, was adopted from 14 August 2017. The Tribunal accepts the applicant’s oral evidence in respect of the warning issued by the Department as it is consistent with the Department’s reported finding of non-compliance with Reg 2.82 (regarding failure to keep proper records). This is in contrast to the applicant’s written submissions and evidence that the Department ‘came back and said it was all okay’ although, the Tribunal acknowledges from the written submissions of 13 February 2020 that based on further monitoring by Australian Border Force, the Department’s Sponsor Monitoring Unit acknowledged ‘ …we are satisfied that you complied with the program requirements and no further action is required.’ This subsequent compliance with the Department’s program requirements weights somewhat in favour of the applicant.
The Tribunal has considered the issue of underpaid superannuation against the background of the prior monitoring by the Department and the adverse finding of non-compliance with Regulation 2.82 relating to record keeping practices and payment of wages that resulted in the issued warning discussed above. The Tribunal has also considered the submission that this has now been remedied by payment of wages by bank transfer and also that no sponsorship bar was applied. This also weighs in the applicant’s favour. However, the Tribunal considers the degree and extent of the underpayment of superannuation that extended for a period of two consecutive years in 2017 and 2018 is serious, not minor and demonstrates recurrent non-compliance with Commonwealth law concerning workplace relations (Superannuation Guarantee) affecting employees of the business. The Tribunal considers that such underpayments would be likely to exploit the nominee (and other workers).
Having considered the available evidence before it discussed, the Tribunal concludes that superannuation contributions of 9.5% of the applicant’s wages and salaries payroll were short paid. As aforementioned, the Tribunal places weight on the finalised financial statements and returns for 2017 and 2018 discussed for the business prepared by its accountant. The Tribunal is not compelled of any reason why the Tribunal should not accept the accountant’s financial reports as complete and accurate. The Tribunal finds that the applicant has underpaid superannuation employment entitlements of its employees in the 2017 and 2018 financial years. There is no evidence that the underpayment has been promptly remedied.
The Tribunal has also had regard to the PAM guidelines discussed in the applicant’s further written submission above and has taken care not to elevate the guidelines to that of a legislative instrument. The Tribunal agrees that a satisfactory record of compliance does not necessarily require an unblemished record. However, having regard to the pertinent facts of this case discussed, the Tribunal does not consider this is a singular or minor breach. The Tribunal regards the applicant’s conduct overall in respect of underpayment of superannuation does not, on balance, amount to an acceptable or sufficient record of compliance with Commonwealth (Superannuation Guarantee) laws or State laws pertaining to workplace relations sufficient to fulfil its workplace obligations to the nominee. The Tribunal is not able to reach an affirmative belief that the nominator has satisfactorily and materially complied with the laws of the Commonwealth and State or Territory in which it operates a business and employs employees in the business in South Australia.
Accordingly, the requirements of r.5.19(4)(g) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Stavros Georgiadis
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).