Xtraordinary Sydney Pty Ltd (Migration)

[2020] AATA 5859

Xtraordinary Sydney Pty Ltd (Migration) [2020] AATA 5859 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Xtraordinary Sydney Pty Ltd

CASE NUMBER:  1729667

HOME AFFAIRS REFERENCE(S):          BCC2017/2225695

MEMBER:Terrence Baxter

DATE:3 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 03 December 2020 at 1:54pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Graphic Designer – financial capacity to maintain term of employment – accumulated losses in prior financial years – improvement in financial position – wedding industry – impact of the COVID-19 pandemic – evidence of significant bookings and enquiries for the future – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 November 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).

2. The applicant, Xtraordinary Sydney Pty Ltd, applied for approval on 23 June 2017. The applicant nominated Mr Xin Zhou (the nominee) in the position of Graphic Designer. 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate found that the applicant had not demonstrated the financial capacity to employ the nominee on a full-time basis in the position for at least two years.

5. Mr Yuening Hou, a director of the applicant, appeared before the Tribunal by audio conference on 2 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee by audio conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The Tribunal exercised its discretion to hold the hearing by audio conference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by audio conference.

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

8. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Evidence presented before the hearing

10. The applicant provided to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) a number of documents, including:

    a.An ASIC business name extract for the business name Xtraordinary Photos & Video (held by the applicant) dated 15 May 2017.

    b.An ASIC company extract for the applicant dated 15 May 2017.

    c.An ABN Lookup form for the applicant dated 15 May 2017.

    d.An organisational chart of the applicant’s business as at 5 June 2017.

    e.An Employment Agreement dated 2 June 2017.

    f.Evidence of payment of training expenditure together with a submission from the representative dated 23 June 2017 and a summary of training expenditure.

    g.The applicant’s financial statements for the 2014, 2015 and 2016 financial years.

    h.Activity statements for the periods from January 2015 to March 2017.

    i.Screenshots from the applicant’s website.

    j.The nominee’s notices of taxation assessments for the 2014 and 2015 financial years.

    k.Notification of the nominee’s Subclass 457 visa dated 17 March 2014.

    l.Online market salary evidence dated 22 June 2017.

    m.A submission from the applicant regarding the employment of the nominee dated 6 June 2017.

    n.The nominee’s PAYG payment summaries for the 2014 to 2016 financial years.

    o.Extracts from the nominee’s bank statements evidencing payment of his salary from March 2015 to March 2017.

    p.The nominee’s payslips from June 2015 to June 2017.

    q.A submission from the applicant’s accountant dated 21 June 2017.

    r.The nominee’s superannuation statements as at June 2015 and 2016.

    s.A position description.

11. The applicant provided to the Tribunal prior to the hearing further documents, including:

    a.An ASIC company extract for the applicant dated 5 June 2020.

    b.An ABN Lookup form for the applicant dated 24 June 2020.

    c.Work samples.

    d.An ASIC business name extract for the business name Xtraordinary Photos & Video dated 24 June 2020.

    e.An ASIC current and historical extract for the applicant dated 25 June 2020.

    f.The applicant’s financial statements for the 2018, 2019 and 2020 financial years.

    g.The applicant’s tax returns for the 2018, 2019 and 2020 financial years.

    h.The applicant’s Australian Taxation Office income tax 551 account for the period from 1 July 2017 to 23 July 2020.

    i.Activity statements for the periods from July 2019 to June 2020.

    j.An organisational chart of the applicant’s business as at 29 June 2020.

    k.Screenshots from the applicant’s current website.

    l.A comparison of the tasks in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for the occupation of Graphic Designer Code 232411 with the nominated duties of the nominee.

    m.A copy of the ANZSCO classification for unit group 2324 Graphic and Web Designers and Illustrators.

    n.The nominee’s tax returns for the 2015 and 2016 financial years.

    o.Current online market salary evidence.

    p.Employment Agreements dated 31 May 2013 and 25 June 2020.

    q.The nominee’s PAYG payment summaries for the 2014 to 2019 financial years.

    r.The nominee’s notices of taxation assessments for the 2014 to 2019 financial years.

    s.Notifications of the applicant’s approval as a standard business sponsor dated 16 August 2013 and 27 July 2020.

    t.A further copy of the notification of the nominee’s Subclass 457 visa dated 17 March 2014.

    u.Submissions from the representative dated 29 June 2020 and 27 July 2020.

    v.Bank statements for the applicant’s account with the Commonwealth Bank for the period from 31 March 2020 to 24 July 2020.

    Evidence presented at the hearing regarding the applicant’s operations

12. Mr Hou gave evidence regarding the business operated by the applicant. He said that the company had been operating for approximately seven or eight years and that it was mainly a wedding photography and video business. He said that the applicant also provided related services such as printing and enlargement of photographs and production of photograph albums.

13. Mr Hou stated that the applicant conducted its business from rented premises in Leichhardt, New South Wales but that most of the photography was shot outside of the studio at wedding ceremonies and receptions. He said that he was the Managing Director of the company as well as being a shareholder in the company. He said that the nominee was also a director of the company and that his (the nominee’s) mother was a shareholder. He confirmed that the recent organisational chart showed the nominee as an employee of the applicant. Mr Hou stated that the nominee had resided in Auckland, New Zealand for approximately five months as a result of the COVID-19 pandemic.

14. The nominee gave evidence regarding his employment by the applicant and the tasks performed by him in the position.

    Evidence presented after the hearing

15. After the hearing, the applicant produced to the Tribunal the following documents:

    a.A submission from the representative dated 14 September 2020.

    b.Evidence of assets of Mr Hou and the nominee’s mother.

    c.A submission from the applicant’s accountant dated 15 September 2020.

    d.Evidence of client bookings, pending enquiries and invoices of the applicant together with evidence of a debtor’s financial capacity.

    e.A summary of gross wages paid by the applicant during the 2020 financial year.

    f.The nominee’s Diploma in Graphic Design Level 5 issued by Digitrain Institute of Digital Training & Design dated 8 April 2005 and letter regarding credits to be awarded dated 19 July 2004.

    g.A submission from the applicant dated 16 September 2020.

    h.A Profit and Loss projection of the applicant for the 2021 financial year.

    i.Evidence of repayment of a loan payable to the applicant.

    Departmental Client of Interest note

16. During the hearing, the Tribunal advised Mr Hou that, according to Departmental records, the Department regarded the applicant as a Client of Interest. The Tribunal notes that the only reason for this notation is that the nominee is also a director of the applicant company. This information was disclosed in the company extract provided to the Tribunal by the applicant. The Tribunal does not regard the Client of Interest note to be relevant to this application and places no weight on the note. Mr Hou was advised accordingly at the hearing.

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

17. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation.

18. Having regard to the information provided by the Department, the Tribunal is satisfied that the application for approval was made on the approved form, was accompanied by the prescribed fee and included a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.5.19(3)(a)(i) are met.

19. Regulation 5.19(3)(a)(ii) requires that the application for approval identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in cl.457.223(4) of Schedule 2 to the Regulations. The person identified in the application is the nominee, Xin Zhou. Department records reveal that the nominee was granted a Subclass 457 visa on 17 March 2014, which was valid until 17 March 2018. Accordingly, the nominee held the required subclass of visa on the date of the application, 23 June 2017. The Tribunal is satisfied that the requirements of r.5.19(3)(a)(ii) are met.

20. Regulation 5.19(3)(a)(iii) requires that the application identifies an occupation, in relation to the position, that is listed in ANZSCO and has the same 4-digit occupation unit code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa. The application identifies both the position and occupation (ANZSCO) as Graphic Designer. The Tribunal finds that ANZSCO lists the occupation Graphic Designer, ANZSCO Code 232411, unit group code 2324. The current Employment Agreement states the nominee’s job title is Graphic Designer. There is no job description contained in the agreement which provides that the nominee is to diligently perform the duties of the position of Graphic Designer. The applicant provided a position description to the Department and a letter dated 6 June 2017 in which the duties performed by the nominee are described. Both Mr Hou and the nominee gave evidence of the duties carried out by the nominee. The tasks described in ANZSCO for unit group 2324 – Graphic and Web Designers and Illustrators are complex and of a high skill level. The nominee has been employed in the position by the applicant since May 2014. At the hearing, the Tribunal had some concerns that the nominee had been carrying on the occupation of Graphic Designer prior to the application being lodged. However, having regard to the evidence as to the duties being performed by the nominee, the Tribunal is satisfied that the nominee has carried on the occupation of Graphic Designer listed in ANZSCO. Accordingly, the Tribunal is satisfied that the requirements of r.5.19(3)(a)(iii) are met.

21. Given the above findings that the requirements in r.5.19(3)(a)(i),(ii) and (iii) are met, the requirement in r.5.19(3)(a) is met.

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

22. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

    The applicant is or was the standard business sponsor who last identified the nominee in a nomination – r.5.19(3)(b)(i)

23. The Department's records confirm the applicant was approved as a standard business sponsor from 16 August 2013 for three years and from 27 July 2020 for five years and was the standard business sponsor who last identified the nominee in a nomination under s.140GB of the Act. Regulation 5.19(3)(b)(i) is therefore met.

    The applicant is actively and lawfully operating a business in Australia – r.5.19(3)(b)(ii)

24. This regulation requires that the applicant is actively and lawfully operating a business in Australia. The applicant produced various documents to the Tribunal including taxation returns, activity statements, financial statements, current ASIC registration documents and current ABN Lookup evidence. Mr Hou gave evidence of the business activities of the applicant. The applicant’s financial statements for the 2016 to 2020 financial years show that the applicant had income for those periods as follows:

Period	Income
2016 financial year	$402,681
2017 financial year	$445,072
2018 financial year	$507,922
2019 financial year	$821,248
2020 financial year	$607,948

1. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely a wedding photography and video business. The requirement in r.5.19(3)(b)(ii) is therefore met.

   The applicant did not, as a standard business sponsor, meet r.1.20DA, or r.2.59(h) or r.2.68(i), in the most recent approval as a standard business sponsor – r.5.19(3)(b)(iii)

2. Department records confirm that the applicant was not granted its most recent standard business sponsorship on the basis of meeting r.1.20DA, r.2.59(h) or r.2.68(i) of the Regulations. Accordingly, the requirement in r.5.19(3)(b)(iii) is met.

3. Given the above findings that the requirements in r.5.19(3)(b)(i),(ii) and (iii) are met, the requirement in r.5.19(3)(b) is met.

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

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

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

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

5. The nomination application was lodged on 23 June 2017. It is therefore required that the nominee was employed in the position for at least two years in the period from 23 June 2014 to 23 June 2017. The applicant provided to the Department an Employment Agreement dated 31 May 2013, which provides that the nominee was to be employed for a probationary period of three months and thereafter indefinitely until the agreement was terminated in accordance with the provisions thereof. The applicant has provided PAYG payment summaries for the nominee for the 2014 to 2017 financial years. The applicant also provided a written statement that the nominee had been employed since 1 May 2014. Both Mr Hou and the nominee gave evidence that the nominee was employed full-time by the applicant from the commencement of his employment until at least the date of the application. The PAYG payment summaries confirm that the nominee was employed in his nominated position from 1 May 2014. As stated previously, the nominee was granted a Subclass 457 visa on 17 March 2014.

6. The Tribunal is accordingly satisfied that the nominee has been employed full-time in Australia in the position for which he held a Subclass 457 visa for at least two of the three years immediately before the date of the nomination application. Accordingly, the requirement in r.5.19(3)(c)(i) is met.

7. Given the above findings, the requirement in r.5.19(3)(c) is met.

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

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

9. The nominee is a person to whom r.5.19(3)(c)(i) applies (see paragraph 30 above) and is therefore required to meet this requirement.

10. The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the 2020 Employment Agreement. The agreement provides that the nominee’s employment status is full-time, 38 hours per week plus additional reasonable hours to discharge his duties. The effective term of the agreement is for a period of two years from grant of the nominee’s ENS visa. The agreement does not include an express exclusion of the possibility of extending the period of employment.

11. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The delegate, based on the information provided to the Department, was not satisfied that the business had shown financial capacity to be able to pay the full-time salary for the nominee in the nominated position for at least two years. This decision is not surprising, given that the applicant had accumulated losses of $71,114 in the financial years prior to the decision.

1. The financial statements provided by the applicant to the Tribunal disclose the following trading figures:

2015/2016 year	2016/2017 year	2017/2018 year	2018/2019 year	2019/2020 year
Revenue	$402,681	$445,072	$507,922	$821,248	$607,948
Employee benefits	$134,776	$115,952	$198,654	$286,389	$220,751
Other expenses	$269,247	$276,169	$291,924	$527,649	$386,004
Total expenses	$404,023	$392,121	$490,578	$814,038	$606,755
Profit/(Loss)	($1,342)	$52,951	$17,344	$7,210	$1,193
Retained profits/(Accumulated losses)	($71,114)	($18,183)	($839)	$4,994	$5,838
Net Assets/(Liabilities)	($70,114)	($17,183)	$161	$5,994	$6,858

1. At the hearing, Mr Hou stated that he took over management of the company in 2013. He said that the company was in bad shape at the time and that it took several years to get it back on track. The Tribunal notes that the applicant has improved from a position of having net liabilities of $70,114 in the 2016 financial year to net assets of $6,858 in the 2020 financial year.

2. The Tribunal asked Mr Hou to describe how the COVID-19 pandemic had affected the applicant’s business. He said that the wedding industry had been heavily affected by the pandemic as most weddings planned for the 2020 year had been postponed until next year. He said that he had been worried a few months ago but he was more optimistic now. He stated that the applicant had received deposits for weddings next year and he explained that weddings were booked up to 12 months in advance. He said that the applicant’s revenue had dropped but not as badly as some other industries. He said that the applicant had trimmed its wage costs during the pandemic.

3. The Tribunal notes that the applicant’s revenue dropped from $821,248 in the 2019 financial year to $607,948 in the 2020 financial year. Mr Hou stated that the nominee had been on leave from his employment for four to five months. The Tribunal asked him how the applicant could afford to employ the nominee at his salary of $62,000 per year plus superannuation in the current financial circumstances. He said that the nominee was taking a break at the present time but that he was an essential part of the business. He said that the applicant could possibly sacrifice another employee but not the nominee. He also stated that the applicant had weddings re-scheduled for 2021 and that he expected to be very busy after the effect of the pandemic had reduced. He stated that the applicant had the capacity to employ the nominee for at least two years.

4. The Tribunal noted at the hearing that the applicant’s 2020 balance sheet included loans totalling $72,000 payable to the applicant by two other entities. As these assets could impact on the ability of the applicant to employ the nominee in the future, the Tribunal sought details of the nature of these loans. After the hearing, the applicant provided a submission from its accountant with supporting evidence that a loan of $10,000 had been repaid since the hearing. The applicant also provided details of the loan of $62,000 payable by Dreamlife Photos and Video NYC together with evidence of the debtor’s capacity to repay the debt. The applicant also provided evidence of significant bookings and enquiries for the future.

5. The Tribunal accepts that businesses around Australia have suffered severe impacts as a result of the pandemic. This appears to be particularly the case for the wedding industry. However, the Tribunal notes that, even after having experienced a significant downturn in revenue, the applicant has still been able to generate a profit in the 2020 financial year. The Tribunal also accepts that the applicant has a sound balance sheet. The Tribunal is satisfied that the applicant has the financial capacity and the intention to employ the nominee in the position of Graphic Designer in accordance with the Employment Contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in r.5.19(3)(d)(i) is met.

6. As the requirements of both r.5.19(3)(d)(i) and (ii) are met, the requirement in r.5.19(3)(d) is met.

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

7. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

8. The recent organisational chart establishes that the applicant has no Australian citizen or permanent resident working in the position of Graphic Designer at the present time.

9. The current Employment Agreement provides that the applicant will pay to the nominee a salary of $62,000.00 per annum, plus superannuation. The amount of the salary being paid to the nominee is supported by the PAYG payment summaries produced to the Tribunal.

10. The applicant produced to the Tribunal evidence in the form of a copy of recent online job outlooks for the position of Graphic Designer produced by PayScale, Seek.com.au and Indeed.com. The annual salaries referred to by Indeed were in the range of $34,000 to $129,000, the range in the PayScale evidence was $44,000 to $77,000 and in Seek the range was $55,000 to $65,000.

11. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

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

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

13. 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.

14. In relation to the Subclass 457 scheme, a person who was a standard business sponsor of at least one primary sponsored person was required to comply with requirements relating to training of Australian workers, in each year they engaged a Subclass 457 visa holder.

15. The period of the applicant’s most recent sponsorship approval is for five years from 27 July 2020.  The nominee was issued a Subclass 457 visa on 17 March 2014, which was valid until 17 March 2018.

16. The training benchmarks and training requirements are specified in instrument IMMI 13/030. 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 as 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.

17. It is necessary to determine the periods of time, if any, in respect of which the applicant was or is required to comply with the training benchmarks. The relevant regulation, being r.2.87B of the Regulations, was repealed by the Migration Amendment (Skilling Australian Fund) Regulations 2018. A transitional provision introduced by those regulations provides that a person is not required to comply with r.2.87B(2) or (3) in relation to a period of 12 months ending on or after the commencement day (12 August 2018). As all annual periods of the applicant’s most recent sponsorship end after 12 August 2018, the Tribunal finds that the applicant is exempt from complying with training obligations during its sponsorship approval period. Accordingly, the Tribunal finds that the requirement in r.5.19(3)(f)(i)(A) does not apply.

18. The Department’s policy (PAM3) states that to satisfy r.5.19(3)(f)(i)(B), the nominator must not have been investigated by the Department and found non-compliant with the applicable obligations under Division 2.19 of the Regulations. The Tribunal is not bound by policy but can have regard to it. There is no evidence before the Tribunal to indicate that the applicant has been investigated or found to be non-complaint with the applicable obligations under Division 2.19 relating to the nominator's training requirements during the sponsorship period. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(f)(i)(B) is met.

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

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

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

21. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

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

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

23. Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

24. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relation laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

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

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

    DECISION

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.