WINTER STRAWBERRIES CO PTY LTD (Migration)
[2020] AATA 2556
•16 April 2020
WINTER STRAWBERRIES CO PTY LTD (Migration) [2020] AATA 2556 (16 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Winter Strawberries Co Pty Ltd
CASE NUMBER: 1721506
DIBP REFERENCE(S): BCC2017/2293266
MEMBER:De-Anne Kelly
DATE:16 April 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 16 April 2020 at 12:40pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition Nomination – failed to maintain commitment to the ongoing training –nominee would be employed on a full time basis in the position for at least 2 years –no evidence to show financial capacity to pay the nominated full-time salary for the nominated position – decision under review affirmedLEGISLATION
Migration Act 1958, ss 140GB, 359
Migration Regulations 1994, rr 2.87, 5.19STATEMENT 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 22 August 2017 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 28 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the applicant failed to demonstrate the business has the financial capacity to offer the nominee full-time employment in the position for at least two years.
The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by its registered migration agent, Abu Siddique MARN: 0901413 of Abu Legal, Sydney. The representative attended the Tribunal hearing.
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 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.
Included in the documents provided with the original application were the following:
1)Acknowledgement from Department of Immigration dated 28 June 2017.
2)Online application for employer nomination.
3)Training invoices and fees.
4)ASIC business register for 457 visa approval.
5)Business activity statements from April 2016 to March 2017.
6)List of current employees attached to employer nomination dated 28 June 2017.
7)ASIC organisation search.
8)457 nomination approval.
9)Business plan.
10)Employment contract.
11)Market salary rate analysis for sales & Marketing Manager.
12)Financial statement 2016.
13)Certificate of registration for company.
14)Submission for employer nomination.
15)Covering letter from registered migration agent.
16)Tax invoice from McKkr’s training undated $6,500.
17)Training plan from McKkr’s for 16).
18)Tax receipt from McKkr’s dated 28 June 2017 for $6,500.
19)Business activity statement January to March 2017.
20)Business activity statement October to December 2016.
21)Business activity statement July to September 2016.
22)Business activity statement April to June 2016.
23)Tax invoice from McKkr’s for $2,950.
24)Training plan form McKkr’s for 23).
25)Tax receipt from McKkr’s dated 28 June 2017 for $2,950.
26)Tax invoice from Countryco Training Pty Ltd dated 4 May 2017 for $720 with stamp “PAID” on it.
27)Tax invoice from St John Ambulance 27 April 2017 for $99 with “Payment method - credit card” and “Payment date 27.04.2017 17:48”.
28)457 sponsorship submission.
29)Employment agreement between nominator and nominee for position of sales and marketing manager on $181,000 per annum signed 28 June 2017, including position description.
30)A number of examples of advertisements online for sales and marketing managers.
31)Financial report for the year ended 30 June 2016.
32)Submission dated 11 July 2017 from registered migration agent on employer nomination application.
33)Notification of refusal of a nomination application from Department of Immigration and Border Protection dated 22 August 2017.
Documents were provided on 2 March 2020 and included the following:
34)Email dated 2 March 2020 from registered migration agent listing documents sent.
35)Letter from nominator dated 27 February 2020 titled “genuine need”.
36)Letter from CAN Professional Accountants detailing profit and loss figures from 2015 to 2020.
37)Financial reports to 30 June 2014; 30 June 2019.
38)Company tax returns 2018 and 2019.
39)List of employees for 2020 year.
40)10 x Grower remittance advice from company at Brisbane markets.
41)Updated employment contract between nominator and nominee signed 25 February 2020 including position description.
42)Photos of farm and packing shed.
43)Letter dated 27 February 2020 with market salary analysis with selection of advertisements.
44)Letter dated 27 February 2020 from nominator regarding suitability of nominee.
45)Employment leave record for nominee from 2014 to 2018.
46)PAYG payment summaries for nominee from 2014 to 2016.
47)ASIC current and historical company extract for nominator showing next review date 27 April 2020.
48)Letter dated 13 March 2020 from registered migration agent requesting extension of time.
49)Email dated 17 March 2020 from the Tribunal granting extension of time to 24 March 2020.
The following documents were included in those submitted on 24 March 2020 in response to the s.359AA invitations at the hearing:
50)Email from AAT granting extension of time to 24 March 2020.
51)Email from registered migration agent dated 24 March 2020 with list of attachments.
52)Letter dated 13 March 2020 - Financial ability; market salary; training benchmark (stating that applicant will make submission); genuineness of the position.
53)Financial statements for 2017 and 2018.
54)Integrated Client Account from 1 January 2016 to 3 March 2020.
55)Bank statements from 1 July 2016 to 30 June 2019.
56)Letter from nominator dated 27 February 2020 with calculation of training expended and required under training benchmark B and list of training and date of invoicing.
57)Tax invoice dated 20 March 2013 from Horticulture Australia Limited (HAL).
58)Tax invoice from Farm Safe Queensland dated 9 October 2013 with PAID stamp on it.
59)Tax invoices from Biomites dated 8 June 2014; 27 August 2014; 20 July 2014.
60)Tax invoice from Greenfield Education Pty Ltd dated 9 January 2015.
61)Tax receipt from Greenfield Education Pty Ltd dated 9 January 2015.
62)Tax invoice from Greenfield Education Pty Ltd dated 12 January 2016.
63)Tax receipt from Greenfield Education Pty Ltd dated 26 January 2016.
64)Letter from Bugs for Bugs undated stating they have provided training over a long period of time to the nominator.
The Tribunal has carefully accounted for all documents by comparing the electronic file of documents to the list above and by opening each electronic document to ensure that all attachments are recorded in the list above. The Tribunal is satisfied that all documents have been properly accounted for and included in the list above. The Tribunal has carefully considered all documents.
The letter from the nominator dated 27 February 2020 gave the following overview of the business. Winter Strawberries Co Pty Ltd T/A Winter Strawberries was registered with ASIC on 27 April 2005. Winter Strawberries operates a farm specialising in growing and harvesting strawberries. It is located at 504 Dr Mays Crossing Road, Alloway, QLD 4670. The director of the company is Mr Hoang Dien Le.
Part of the harvest the company sells at an on-site shop and the remainder is sold to major supermarket chains such as Woolworths. The company claims their strawberries are special as they are grown in a climate that makes them juicier, sweeter and not too sour. This has made their strawberries a much sought-after product within the local community. Very often they get calls from the supermarkets asking them to restock as inventory turnover for the strawberries is extremely high. The company is committed to continuing the good job that they have done thus far and in keeping the quality of produce consistent in order to meet the needs of their customers and keep them satisfied.
In March 2014, the nominee Mr Hoang De Le joined the company on a Subclass 457 visa. The applicant states the company was very small in operation at that time turning over $2,377,109 but have since overhauled their business model, improved marketing strategy and business operation and anticipates a business turnover in the financial year 2020 of $5,157,529.
The financial statements and tax returns show the following profit figures for the enterprise:
2015 2016 2017 2018 2019 2020 Income 4,584,491 6,926,456 5,011,174 5,168,726 4,096,798 5,157,529 Expenses 4,202,737 5,402,008 4,861,335 4,683,092 3,986,663 4,627,167 Profit 381,754 1,524,448 149,839 485,634 110,135 530,362
The company in their original application stated they have 6 Australian employees and 52 foreign employees of which the majority are working holidaymakers.
On 28 January 2017 the applicant lodged an employer nomination scheme – visa Subclass 186 application in the temporary residence transition stream for a sales and marketing manager on $181,000 per annum in favour of Mr Hoang De Le. At the hearing the director of the company explained that the nominee was his younger brother and was the most suitable person to fill the position. The Tribunal gave no weight to this sibling relationship in making their decision.
Law and issues
At the time this employer nomination and visa application were lodged there was an exemption in IMMI 15/083 from various clauses in the visa legislation for ‘persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.’ At the time this income rate was $180,001 for a nominated position.
The exemption was in cl.186.222(b) which related to having vocational English.
Postponements, adjournments and extensions of time
Originally, the applicant was invited to a hearing on 7 January 2020 but requested a postponement on 20 December 2019 due to medical matters that prevented the Managing Director appearing. A medical certificate was provided. The Tribunal rescheduled the hearing to 3 March 2020.
During the hearing, in response to a matter put under s.359AA of the Migration Act 1958 (the Act) the applicant requested a short adjournment and this was readily granted.
Following the hearing, the applicant was given 14 days to provide further information however on 13 March 2020, a request for an extension of time was made and this was readily granted to 24 March 2020.
s.359AA of the Act
At the commencement of the hearing, the Tribunal explained to the applicant that the Tribunal may put information to him, under s.359AA of the Act that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways; he could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time he wished and he could seek advice from his registered migration agent; he could make a written submission within 14 days or an extended period of time if he requested an extension; or he could respond in the hearing. If he responded in the hearing, it would not prevent him from making a written submission within 14 days or a longer period if he requested an extension of time.
Section 359AA provides as follows:
The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
Regulation 5.19(3)(f)(i)(A) and (B) refer to Division 2.19 and r.2.87B which are provided below, and the instrument in writing for the regulation is IMMI13/030 which is also provided below:
Division 2.19
Regulation 2.87B Obligation to provide training
(1) This regulation applies to a person who was lawfully operating a business in Australia
at the time of:
(a) the person’s approval as a standard business sponsor; or
(b) the approval of a variation to the person’s approval as a standard business sponsor.
(2) If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the
standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a) the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the
standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4) The obligations referred to in subregulations (2) and (3) start to apply on the day the
person is approved as a standard business sponsor.
(5) If the period of the person’s approval as a standard business sponsor is less than 6
years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6) If the period of the person’s approval as a standard business sponsor is at least 6
years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.IMMI 13/030 - SCHEDULE A
Training Benchmarks
The business is not required to demonstrate that they are an industry leader in training.
The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.
The training benchmarks for an established business are:A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
Expenditure that can count towards this benchmark 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/occupationExpenditure that cannot count towards this benchmark includes 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 businesses 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.
In considering whether IMMI13/030 is met it is noted that A) and B) refer to “recent expenditure”. This requirement only applies to employer nomination permanent applications in the direct entry stream. For applications in the temporary residence transitional stream such as the one under consideration, IMMI13/030 is subject to Division 2.19 and r.2.87B which require training expenditure in specific sponsorship periods rather than in recent times.
Sponsorship periods
At the hearing, it was established that the most recent Subclass 457 visa sponsorship approval for the applicant was from 4 February 2013 to 4 February 2016. Since the applicant’s period of sponsorship is less than six years, the sponsorship period was therefore taken as ending three years after the person’s most recent approval as a standard business sponsor. This complies with r.2.87B(5). The sponsorship period is therefore taken as 4 February 2013 to 3 February 2014; 4 February 2014 to 3 February 2015 and 4 February 2015 to 4 February 2016 although the first sponsorship period was not applicable due to information that came to hand following the hearing.
Training receipts
Prior to the hearing, the following documents were provided as evidence of meeting training benchmark B, in IMMI13/030, or 1% of the payroll in the relevant sponsorship year:
No Document Date Invoiced by Invoiced to Amount 1 Receipt 28.06.2017 McKkr's Winter Strawberries 6,500 2 Receipt 28.06.2017 McKkr's Winter Strawberries 2,950 3 Tax Invoice 4.05.2017 Countryco Training PL Winter Strawberries 4 Tax Invoice 27.04.2017 St John Ambulance Winter Strawberries The hearing
In the hearing, the Tribunal took the applicant through the training requirements namely determining the sponsorship periods and establishing that the training expenditure has been undertaken “for that 12 month period” such that r.2.87B can be satisfied where it provides:
(3) If, during all or part of:
(a) the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the
standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period. (Emphasis added).The Tribunal explained that the receipts from McKkr’s are outside the sponsorship period whereupon the applicant said they are a “bit late” but the Tribunal noted they were one and a half years late and they were also receipted on 28 June 2017, so it is not unreasonable to find they were paid in anticipation of the employer nomination which was also lodged on 28 June 2017.
The Tribunal advised the applicant that the tax invoices were “invoices” and not receipts and therefore not evidence of a payment being made. The Tribunal also explained that the difficulty with the receipts was that there was a notation on them that the training was delivered to four people but those people must be Australian citizens or permanent residents to satisfy IMMI13/030 where it states the training expenditure is “for the business’s employees who are Australian citizens and Australian permanent residents”. The applicant responded that the training was given to residents and the Tribunal requested evidence to support that fact. At this juncture, the registered migration agent advised that they would submit further evidence of the actual payroll which varied due to the seasonality of the workforce.
The Tribunal advised the applicant under s.359AA of the Act that for the first sponsorship year, there were no training receipts and the Tribunal did not have complying training receipts for the second and third sponsorship years. As a result the Tribunal may find that the application does not meet r.5.19(3)(f). The applicant was advised that the Tribunal could disregard the fact that they did not meet r.5.19(3)(f)(i) and find they met r.5.19(3)(f)(ii). The Tribunal invited a response and the applicant requested and was granted a short adjournment to consult with the registered migration agent. The applicant then advised that he would go through his paperwork and provide the required documentation. He had not been aware that the documentation was not in order.
Submissions after the hearing
Following the hearing, it came to the Tribunal’s attention that the nominee’s Subclass 457 visa was not granted until 6 February 2014 so there was no primary sponsored person during the first sponsorship period 4 February 2013 to 3 February 2014. There was another employee listed as being on a 457 visa but shown as a casual employee and it was not clear whether this person was sponsored by the applicant on a 457 visa or was the partner of a primary sponsored person on a 457 visa and thus able to work for any employer other than the sponsoring employer. There was no sound evidence that the applicant had other primary sponsored persons so the Tribunal finds that the nominee is the sole primary sponsored person. The relevant sponsorship periods are therefore only two in number being 4 February 2014 to 3 February 2015 and 4 February 2015 to 4 February 2016. This is in order to satisfy r.2.87B:
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person
The registered migration agent’s submission of 13 March 2020 makes brief reference to training benchmarks as follows: “the applicant seeks to rely upon training benchmark B and have [sic] been successful to locate additional training records. The applicant have [sic] enclosed a submission with attachments for your consideration.”
The letter from CAN Professional Accountants dated 4 March 2020 provided details of wages and superannuation as follows:
Sponsorship period 4 Feb 2014 - 3 Feb 2015 4 Feb 2015 - 3 Feb 2016 Outside sponsorship period Aggregation Wages 347,491 457,437 Superannuation 32,724 43,457 Total Payroll 380,215 500,894 1% payroll 3,802 5,009 8,811
From this, the Tribunal was able to calculate the training requirements to meet benchmark B being 1% of payroll in each sponsorship period.
In assessing training expenditure it is relevant that Goods and Services tax (GST) being refunded by the Australian Taxation Office is not included in the evaluation of training expenditure since it is not expended but refunded.
The applicant submitted additional documentation such that the complete list of training documentation is shown below:
No Document Date Invoiced by Amount Staff Trained 1 Receipt 28.06.2017 McKkr's 6,500 2 Receipt 28.06.2017 McKkr's 2,950 3 Tax Invoice 4.05.2017 Countryco Training PL 4 Tax Invoice 27.04.2017 St John Ambulance 5 Tax Invoice 20.03.2013 HAL 10,170 6 Tax Inv/Receipt 9.10.2013 Farmsafe Qld 333 7 Tax Invoice 1.05.2014 Biomites 800 8 Tax Invoice 27.08.2014 Biomites 1600 9 Tax Invoice 20.07.2014 Biomites 800 10 Tax Invoice 9.01.2015 Greenfield Ed. PL 300 11 Tax Receipt 9.01.2015 Greenfield Ed. PL 300 12 Tax Invoice 12.01.2016 Greenfield Ed. PL 5000 Knight etc 13 Tax Receipt 26.01.2016 Greenfield Ed. PL 5000 Knight etc
The first four documents, as previously discussed are outside the sponsorship periods and will not be considered further. The Tribunal will consider whether it is reasonable to exclude tax invoices as evidence of training expenditure. The Oxford online dictionary defines “invoice” as “a list of goods sent or services provided, with a statement of the sum due for these; a bill.” It is noted that an invoice is for a “sum due…a bill” and not evidence of a sum paid. The Tribunal considers it is reasonable to exclude tax invoices and only consider tax receipts as evidence of training expenditure to satisfy IMMI13/030 namely “expenditure, by the business”.
Despite the Tribunal advising the applicant and the registered migration agent at the hearing that tax invoices are not evidence of payment or expenditure, it is noted that the majority of the documentation with the exception of documents 6, 11 and 13 are tax invoices.
Document 5 is for a large amount and the Tribunal considers it must give this document careful scrutiny since it alone if it is compliant with IMMI13/030 would satisfy the training expenditure requirement. The invoice is from Horticulture Australia Limited to Winter Strawberries Co. Ltd and states as follows: “BS09022 – Alternative fruit fly treatment for inte [sic] – milestone no 108 – Milestone Due 30/04/2013.” The invoiced amount less GST is $10,170.57. Handwritten across the invoice is “Fruit Fly Treatment training” and printed on the invoice is the following;
Thank-you for your interest in the activities of Horticulture Australia Limtied and for the pledge of financial support for the project. We appreciate your support for horticultural research and development. The success of the Company’s R&D program is enhanced through the involvement of organisations such as yours and we encourage your continuing interest. Please note we are unable to make any payment to the R&D organisation prior to receiving your contribution.
The Tribunal notes there is no mention of a training program nor are there any names of training participants. A Google search reveals “Horticulture Australia Limited project BS09022” is a study undertaken by Mr Brendan Missenden et al called “Alternative fruit fly treatment for interstate market access for strawberries: Winter window option”. It seems that this was a study undertaken by this scientist and paid for by the industry. The Tribunal considers that such a study would not involve a scientist training the workers on a strawberry farm but would rather involve testing various treatments for fruit fly such that strawberries can be sent interstate. The Tribunal finds that document 5 is not a receipt for training; does not refer to training undertaken; does not list employees who may have been recipients of this training or whether they are Australian citizens or permanent resident’s. As such it does not comply with IMMI 13/030.
Document 6 from Farmsafe Qld dated 9 October 2013 is prior the second sponsorship period that commenced on 4 February 2014. It also has no details of the employees trained and whether they are Australian citizens or permanent residents or even whether they are principals of the business or family members of the principals of the business. This must be met to satisfy IMMI13/030: “Expenditure that cannot count towards this benchmark includes training that is - 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”. The Tribunal considers document 6 does not comply with IMMI13/030.
Documents 11 and 13 detail the training undertaken and state the training was given to “1. Andrew Knight 2. Ziqiang Jiang 3. Van Nien Nguyen”. The Tribunal checked the List of Current Employees[1] from 2017, and can find Bradley Keith Knight but no reference to Andrew Knight. There is no one called Ziqiang Jiang or Van Nien Nguyen listed. The Tribunal has checked the List of Employees[2] for 2020 and cannot find any reference to Andrew Knight. There is on the list a Mr Jiang Ziqiang whose position is listed as “Plastic” and is shown as being on a 462 work and holiday visa. There is Nguyen Van Nien whose position is “picker” and shown as a citizen. The Tribunal has checked the file of documents to determine if there are PAYG payment summaries as evidence that these persons were employees at the time of the training receipt but cannot locate such evidence. It is evident that Jiang Ziqiang is presently on a working holiday visa and is therefore not now and never has been an Australian citizen or permanent resident. Nguyen Van Nien is listed as being a citizen but no evidence such as a passport or similar has been provided nor has evidence been given that at the time of the training in 2016 this person was an Australian citizen. This is relevant because there are 81 employees on the List of employees for 2020 and only 11 of them are listed as being Australian citizens. The majority of employees are shown as being on working holiday visas and are therefore not Australian citizens or permanent residents.
[1] 8) List of current employees attached to employer nomination 28 June 2017.
[2] 42) List of employees for 2020 year.
The Tribunal raised the necessity of providing evidence that training is given to Australian citizens or permanent residents at the hearing and considers that it is reasonable to find that documents 11 and 13 do not satisfy IMMI13/030. This is because there is no evidence that the training expenditure complies with IMMI13/030 namely, “Expenditure that cannot count towards this benchmark includes training that is - 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”.
The Tribunal finds that there is no training expenditure in the second and third sponsorship years namely 4 February 2014 to 3 February 2015 and 4 February 2015 to 4 February 2016 as shown in the table below:
Sponsorship period 4 Feb 2014 - 3 Feb 2015 4 Feb 2015 - 3 Feb 2016 Outside sponsorship period Aggregation Wages 347,491 457,437 Superannuation 32,724 43,457 Total Payroll 380,215 500,894 1% payroll 3,802 5,009 8,811 Complying receipts 0 0 0
The Tribunal considers r.2.87(B) was not met; Division 2.19 was not met and therefore r.5.19(3)(f)(i) was not met. The Tribunal needs to consider whether it is reasonable to disregard r.5.19(3)(f)(i) and find that the applicant meets r.5.19(3)(f)(ii) for the first year of the sponsorship.
Reasonable to disregard
The Tribunal is not bound to follow policy but in this case will follow the recommendations in the Department of Immigration Policy Advice Manual entitled “Reasonable to Disregard” that states the following:
Disregarding regulation 5.19(3)(f)(i) …should only be considered if the delegate is satisfied the nominator has not, at any stage of the most recently approved standard business sponsorship, failed to maintain their commitment to the ongoing training of Australian citizens and permanent residents in their industry, as specified within the training benchmarks. (Emphasis added)
For example, delegates may form the view that it is Reasonable to Disregard regulation 5.19(3)(f)(i) if:
· 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 (for example, an amount equal to 1.5% of payroll was placed in an industry training fund and an amount equal to 0.5% of payroll spent on internal training to make up 2% of payroll spent in training) Or
· 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.
Conversely, a delegate may form the view that it is not Resonable to Disregard regulation 5.19(3)(f)(i) if the nominator has failed to demonstrate they have met either training Benchmark A or B (or a combination of both), in full in each relevant year of their most recently approved standard business sponsorship.
Different scenarios may provide examples of what a delegate may or may not consider ‘reasonable’ , however delegates should not apply regulation 5.19(3)(f)(ii) inflexibly, but must consider the merits of a particular case.
The applicant has failed entirely to maintain their commitment to the ongoing training of Australian citizens and permanent residents in their industry in the second and third sponsorship periods and therefore r.2.87B, Division 2.19 and r.5.19(3)(f)(i) have not have been met. The applicant does not meet the requirement in the first paragraph of “Reasonable to Disregard” that states “the nominator has not, at any stage of the most recently approved standard business sponsorship, failed to maintain their commitment to the ongoing training…”
The Tribunal will consider whether dot point one in “Reasonable to Disregard” has been met such that in a required year during the term of the most recently approved sponsorship the nominator has demonstrated meeting a combination of both training benchmark A and B. At no time has the applicant tried to meet training benchmark A so the Tribunal is left to consider only benchmark B expenditure. The Tribunal has found there was nil training expenditure in sponsorship year two and three while the benchmark training expenditure required was respectively $3,802 and $5,009. The Tribunal considers that dot point one in “Reasonable to Disregard” has not been met.
The Tribunal will consider whether dot point two has been met such that 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. From the table above it can be seen that the nominator has an aggregate expenditure on training over the period 4 February 2014 to 4 February 2016 of nil. The aggregate training commitment under benchmark B for the same period is $8,811.
The Cambridge online dictionary defines commensurate as “suitable in amount or quality compared to something else; matching in degree”. The nominator’s aggregate expenditure on training is nil while the aggregate training commitment required under benchmark B is $15,757 and does not meet the definition of being “suitable in amount” or “matching in degree” or commensurate therefore the Tribunal considers that the nominator has not met dot point two in “Reasonable to Disregard”.
Scenario one
The Tribunal is aware that it must be reasonable and not apply r.5.19(3)(f)(ii) inflexibly and must consider different scenarios. The Tribunal considers it would not be reasonable to accept tax invoices as evidence of expenditure.
One scenario that can be considered is that the first two receipts numbers 1 and 2 that were from McKkr’s for $6,500 and $2,950 both dated 28 June 2017 and outside the sponsorship period could be taken as evidence of complying with the training guidelines. This scenario is shown in the table below;
Sponsorship period 4 Feb 2014 - 3 Feb 2015 4 Feb 2015 - 3 Feb 2016 Outside sponsorship period Aggregation Wages 347,491 457,437 Superannuation 32,724 43,457 Total Payroll 380,215 500,894 1% payroll 3,802 5,009 8,811 Complying receipts 0 Document 1 6,500 Document 2 2,950 Total Training Exp. 0 0 9,450 0
The Tribunal will assess it against ‘“Reasonable to Disregard”.
The applicant has failed entirely to maintain their commitment to the ongoing training of Australian citizens and permanent residents in their industry in the second and third sponsorship periods and therefore r.2.87B, Division 2.19 and r.5.19(3)(f)(i) have not have been met. The applicant does not meet the requirement in the first paragraph of “Reasonable to Disregard” that states “the nominator has not, at any stage of the most recently approved standard business sponsorship, failed to maintain their commitment to the ongoing training…”
The Tribunal will consider whether dot point one in “Reasonable to Disregard” has been met such that in a required year during the term of the most recently approved sponsorship the nominator has demonstrated meeting a combination of both training benchmark A and B. At no time has the applicant tried to meet training benchmark A so the Tribunal is left to consider only benchmark B expenditure. The Tribunal has found there was nil training expenditure in sponsorship year two and three while the benchmark training expenditure required was respectively $3,802 and $5,009. The Tribunal considers that dot point one in “Reasonable to Disregard” has not been met.
The Tribunal will consider whether dot point two has been met such that 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. From the table above it can be seen that the nominator has an aggregate expenditure on training of $9,450 but it is not over the period 4 February 2014 to 4 February 2016 and therefore is not over the “term of their most recently approved sponsorship”. The aggregate training commitment under benchmark B for the same period is $8,811 but the aggregate over the term of the most recently approved sponsorship by the applicant is $0.00.
The Tribunal notes it is recommended that r.5.19(3)(f)(i) be disregarded only if the nominator has not, at any stage of the most recently approved standard business sponsorship failed to maintain their commitment to the ongoing training. The applicant failed in the second sponsorship period 4 February 2014 to 3 February 2015 and the third sponsorship period 4 February 2015 to 4 February 2016, to meet their training obligations.The Tribunal notes that the applicant fails to meet paragraph one; fails to meet dot point one and fails to meet dot point two of “Reasonable to Disregard” so scenario one is not a reason to disregard r.5.19(3)(f)(i) and find the applicant meets r.5.19(3)(f)(ii).
Moreover the Tribunal considers that it would not be reasonable to accept these receipts, as they are not just a few weeks or even months outside the sponsorship period but 17 months outside the sponsorship period. The Tribunal considers this was an attempt to further the merits of the permanent residency employer nomination Subclass 186 application, rather than an attempt to fulfil commitments to training Australians and permanent residents since they were paid on the same day the employer nomination was lodged.
Scenario two
Another scenario that could be considered would be to accept all the receipts being documents 1, 2, 6, 11 and 13 being respectively $6,500; $2,950; $333; $300 and $5,000 for a total of $15,083. Placing these in the relevant sponsorship years gives the result below:
Sponsorship period 4 Feb 2014 - 3 Feb 2015 4 Feb 2015 - 3 Feb 2016 Outside sponsorship period Aggregation Wages 347,491 457,437 Superannuation 32,724 43,457 Total Payroll 380,215 500,894 1% payroll 3,802 5,009 8,811 Complying receipts 0 Document 1 6,500 Document 2 2,950 Document 6 333 Document 11 300 Document 13 5000 Total training receipts 300 5000 9,783 5,300
The Tribunal will assess this scenario against ‘“Reasonable to Disregard”.
The applicant would not have maintained their commitment to the ongoing training of Australian citizens and permanent residents in their industry in the second and third sponsorship periods because the benchmark B training commitment of 1% of payroll requires training expenditure of $3,803 and $5,009 in the second and third sponsorship periods respectively. The actual expenditure would have been $300 and $5,000. The applicant would not meet the requirement in the first paragraph of “Reasonable to Disregard” that states “the nominator has not, at any stage of the most recently approved standard business sponsorship, failed to maintain their commitment to the ongoing training…”
The Tribunal will consider whether dot point one in “Reasonable to Disregard” has been met such that in a required year during the term of the most recently approved sponsorship the nominator has demonstrated meeting a combination of both training benchmark A and B. At no time has the applicant tried to meet training benchmark A so the Tribunal is left to consider only benchmark B expenditure. The Tribunal has found there was $300 training expenditure in sponsorship year two and $5,000 in sponsorship year three while the benchmark training expenditure required was respectively $3,802 and $5,009. The applicant is close to meeting the training benchmark in sponsorship year three but does not meet the requirement and this is more than overshadowed by the fact that in sponsorship year two the training benchmark is $3,802 and the applicant only met $300 or less than 10% of the required benchmark. The Tribunal considers that dot point one in “Reasonable to Disregard” has not been met.
The Tribunal will consider whether dot point two has been met such that 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. From the table above it can be seen that the nominator has an aggregate expenditure on training over the period 4 February 2014 to 4 February 2016 of $5,300. The aggregate training commitment under benchmark B for the same period is $8,811.
The Cambridge online dictionary defines commensurate as “suitable in amount or quality compared to something else; matching in degree”. The nominator’s aggregate expenditure on training is $5,300 while the aggregate training commitment required under benchmark B is $8,811 and cannot be said to be “matching in degree”.
For these reasons the Tribunal does not consider it reasonable to disregard r.5.19(3)(f)(i) based on the quantum of the training expenditure because it was made to further the merits of the employer nomination application.
Finally it should be noted that the policy “Reasonable to Disregard” does not support taking the quantum of all training receipts including those outside the sponsorship period and using this as a reason to disregard. The Tribunal is willing to consider policy but considers it unreasonable to disregard outside the criterion in “Reasonable to Disregard” as specified by the Department.
Submissions of 24 March 2020
The Tribunal has considered the submissions made following the hearing and notes that all the registered migration agent has stated is “the applicant seeks to rely upon training benchmark B and have [sic] been successful to locate additional training records. The applicant have enclosed a submission with attachments for your consideration.” This is a statement of the obvious and is not an argument to disregard the fact the applicant does not meet r.5.19(3)(f)(i).
The letter[3] from the nominator to the Tribunal dated 27 February 2020 firstly deals with the wages and calculation of training benchmark B. The applicant states the wages expenditure from 4 February 2014 to 3 February 2015 is $380,215 and from 4 February 2015 to 4 February 2016 it is $500,984. This is consistent with the Tribunal’s calculations above. The applicant then deals with the sponsorship period 4 February 2013 to 3 February 2014 however for the reasons given above the Tribunal found it was not necessary for training expenditure to have been undertaken during this period.
[3] 59) Letter from nominator dated 27 February 2020 with calculation of training expended and required under training benchmark B and list of training and date of invoicing.
The applicant claims for the period 4 February 2014 to 3 February 2015 that there are invoices as follows: Bug Management Training dated 8 June 2014 from Horticultural Crop Monitoring Pty Ltd for $880; Bug Management Training dated 20 July 2014 from Horticultural Crop Monitoring Pty Ltd for $880; Bug Management Training dated 27 August 2014 from Horticultural Crop Monitoring Pty Ltd for $1,760 and finally administrative training dated 9 January 2015 from Greenfield Education Pty Ltd for $330 to make a total expenditure on training of $3,850. The Tribunal considers these refer to the tax invoices 7, 8 and 9 from Biomites since the amounts listed minus GST match and the Biomites invoices state they are from Horticultural Crop Monitoring Pty Ltd in Caloundra. The final invoice is number 10 from Greenfield Education Pty Ltd. The Tribunal has made a finding above that tax invoices are not evidence of training expenditure.
The applicant claims for the period 4 February 2015 to 4 February 2016 tax receipt or document 13 from Greenfield Education Pty Ltd for $5,500 meets the training expenditure for that period of time. The Tribunal has found that this receipt does not meet IMMI13/030 because evidence was not provided the training was given to employees who were Australian citizens or permanent residents.
There is the letter from “Bugs for Bugs” based in Toowoomba, undated but addressed to the Administrative Appeals Tribunal stating;
Re; Winter Strawberries Co Pty Ltd – We are an insect/disease monitoring and production company. We provide training to farmers and growers in greater Queensland rural areas and assist in managing their farms against harmful diseases. Winter Strawberries Co Pty Ltd is a loyal customer we have services with our training over a long period of time. We confirm that all the Invoices issued for Winter Strawberries Co Pty Ltd form part of training Australian farm workers’ signed by the Agricultural Consultant
The Tribunal has searched the training documents provided and cannot find any invoices or receipts from “Bugs for Bugs”. It is noted that the Tax Invoice from Horticulture Australia HAL dated 20 March 2013 shows an address in Elizabeth Street Sydney so this cannot be the invoice referred to in the above letter. Biomites is based in Caloundra so again these cannot be the invoices referred to above. Farm safe is based in Thuringowa North Queensland. Greenfield Education Pty Ltd is based in Bankstown NSW. The Tribunal notes that the applicant’s submission of 27 February 2020 does not make reference to any invoice or receipt from ‘Bugs for Bugs’. The Tribunal has considered this letter but finds it does not specify the training programs; expenditure on training; periods of time training was given nor to whom such training was given. While the letter states training was given to “Australian farm workers’ the Tribunal needs evidence of this fact. The Tribunal finds that this letter does not satisfy IMMI 13/030.
The Tribunal finds that the applicant’s submission of 27 February 2020 does not provide evidence of training expenditure meeting training benchmark B and it does not provide evidence to support disregarding r.5.19(3)(f)(i) and finding the applicant meets r.5.19(3)(f)(ii).
The Tribunal finds that the applicant does not meet r.5.19(3)(f)(i) and it is not reasonable to disregard not meeting r.5.19(3)(f)(i) and therefore the applicant does not meet r.5.19(3)(f)(ii).
Accordingly, the requirement in r.5.19(3)(f) is not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
Other matters
The Tribunal took a number of measures to ensure that the interpretation at hearing was as accurate as possible. A certified NAATI interpreter was used during the hearing and the Tribunal asked the applicant on several occasions if he could understand the interpreter and was assured that the interpretation was clear and understandable. The Tribunal is satisfied that there has been adequate interpretation and there has been no misunderstanding or misinterpretation in relation to the significant issues canvassed at hearing and referred to in these Reasons.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
MemberATTACHMENT - 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.
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Administrative Law
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