Yen Yu Pty Ltd (Migration)

[2022] AATA 2927

Yen Yu Pty Ltd (Migration) [2022] AATA 2927 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yen Yu Pty Ltd

REPRESENTATIVE:  Ms Chiung-Hui Chiu (MARN: 0745817)

CASE NUMBER:  1908837

HOME AFFAIRS REFERENCE(S):          BCC2017/912680

MEMBER:Terrence Baxter

DATE:7 July 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 07 July 2022 at 10:34am

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – position of Café or Restaurant Manager – meeting training requirements – impact of the COVID-19 pandemic – payroll of the business – training provided for Australian employees – eligible New Zealand citizen – reasonable to disregard the non-compliance – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 30, 245
Migration Regulations 1994, rr 1.03, 2.87, 5.19

CASES

Vishnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Yen Yu Pty Ltd, applied for approval on 8 March 2017. The applicant nominated Ms Ying-Ching Liu (the nominee) in the position of Café or Restaurant Manager – 2nd-in-charge. At the time of the application, the applicant was operating a restaurant/cafe in Sunnybank, Queensland under a franchise from the Coffee Club group. The franchise agreement ceased in 2017 and the applicant continued to trade from the same premises in Sunnybank as the Chatterbox Café and Lounge Bar. The applicant’s lease of the Sunnybank premises expired in 2021 and the applicant has since opened new cafes in Mount Ommaney and Calamvale, Queensland. The nominee was initially employed in the Sunnybank business and now manages the two cafés in Mount Ommaney and Calamvale.

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

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

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(f)(i)(A) of the Regulations because the delegate found that the applicant had not fulfilled any commitments made in relation to meeting the training requirements during the period of the applicant’s most recent approval as a standard business sponsor and that it was not reasonable to disregard the non-compliance.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 April 2019.  

7. A director of the applicant, Mr Kelvin Lu, appeared before the Tribunal on 18 May 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video 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 video conference.

9. The applicant was represented in relation to the review by its registered migration agent, Ms Chiung-Hui Chiu. The representative attended the Tribunal hearing by video conference.

10. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Evidence presented prior to the hearing

12. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:

    a.Photographs of the business premises and a dining menu of the applicant.

    b.Activity statements of the applicant for the periods from April 2014 to June 2015, March to June 2016 and July 2017 to January 2019.

    c.A profit and loss statement for the 2015 financial year.

    d.An invoice from Oceania College of Technology dated 14 May 2015 accompanied by a training plan.

    e.A payroll activity summary of the nominee prepared by the applicant for the period from July 2016 to March 2017.

    f.Payroll advices of the nominee for the periods from March to June 2015 and from June 2015 to March 2017.

    g.PAYG payment summaries of the nominee for the 2015 and 2016 financial years.

    h.Invoices from Glorious Training Institute dated 27 June 2012 and 18 July 2012.

    i.A training employment contract of Han-I Chiang dated 19 February 2015 and related correspondence from Sarina Russo Apprenticeships.

    j.An undated employment contract of the nominee.

    k.An organisational chart.

    l.Financial reports of the applicant for the 2016 to 2018 financial years.

    m.A financial report of QKK Pty Ltd for the 2018 financial year.

    n.A company tax return for the 2016 financial year.

    o.A submission from the former representative dated 7 March 2019 in response to an invitation to comment on adverse information from the Department.

    p.A payment summaries verification report for Chatterbox Sunnybank and Calamvale regarding various employees for the 2018 financial year.

    q.Activity statements of QKK Pty Ltd for the period from July 2017 to December 2018.

    r.An ASIC company details extract of the applicant.

    s.An ASIC company details extract of QKK Pty Ltd.

    t.A current ABN Lookup form of QKK Pty Ltd.

    u.A screenshot of the Facebook page for Chatterbox Café.

    v.A screenshot of the Zomato reviews page for Chatterbox Café.

    w.A screenshot of the Sunnybank Plaza website page for Chatterbox Café.

    x.An ASIC business name details extract of Chatterbox Café & Lounge Bar.

13. The applicant produced to the Tribunal the following documents:

    a.A copy of the delegate’s decision.

    b.An ASIC company summary of the applicant.

    c.An ASIC company details extract of the applicant.

    d.A menu of Chatterbox café.

    e.Updated business premises photos.

    f.Evidence of the applicant’s tenancy of its business premises at Mt Ommaney and Calamvale.

    g.Financial reports of the applicant for the 2016 to 2021 financial years.

    h.Company tax returns of the applicant for the 2016 to 2021 financial years.

    i.Activity statements of the applicant for the period from July 2019 to December 2021.

    j.An updated organisational chart.

    k.An employee list of the applicant including the visa status of employees.

    l.A position description.

    m.A statement of service for another Café and Restaurant Manager, Ms Jung-Chen Fan, dated 1 March 2022, accompanied by her passport.

    n.A payroll advice prepared by the applicant of Ms Fan for the 2019 to 2021 financial years.

    o.Notification of the grant of Ms Fan’s Subclass 186 visa dated 11 December 2019.

    p.Market salary research.

    q.An employment contract of the nominee dated 15 March 2022.

    r.A statement of service regarding the nominee dated 1 March 2022.

    s.PAYG payment summaries of the nominee for the 2015 to 2019 financial years.

    t.Income statements of the nominee for the 2020 and 2021 financial years.

    u.A payroll advice summary prepared by the applicant of the nominee for the period from February 2015 to June 2017 and the 2017 to 2020 financial years.

    v.An ATO fund transactions summary of the nominee’s superannuation account for the period from May 2019 to January 2022.

    w.Bank statements of the nominee for the period from 2015 to 2022.

    x.Invoice and receipt from Elite Training and Development Pty Ltd for $1,700 dated 14 December 2015 together with training plan.

    y.Invoice and receipt from Empower Skills for $1,600 dated 16 May 2016 together with training plan.

    z.Invoice from Oceania College of Technology for $3,000 dated 11 January 2017 together with receipt dated 13 January 2017 and training plan.

    aa.Invoice and receipt from Empower Skills for $1,200 dated 25 May 2018 together with training plan.

    bb.Invoice and receipt from Australian Chamber of Education for $500 dated 4 June 2018 together with training plan.

    cc.A passport and Visa Entitlement Verification Online (VEVO) check of one of the applicant’s trainees, Mr Xuehao Li.

    dd.A passport and statutory declaration of Ms Tonina Tearoiti, a trainee of the applicant, sworn 19 May 2021.

    ee.A submission from the applicant’s accountant dated 14 March 2022.

    ff.Notification of the applicant’s approved nomination for Ms Fan dated 11 December 2019.

    gg.An updated ASIC company details summary of QKK Pty Ltd.

    hh.An ASIC company details summary of LA Cafe Pty Ltd.

    ii.A submission from Mr Lu dated 18 March 2022.

    Evidence regarding the applicant’s operations

14. Prior to the hearing, Mr Lu provided a written submission describing the applicant’s business background and development. In that submission, he described the establishment of the Coffee Club business in Sunnybank in 1999 and the subsequent rebranding to Chatterbox Café and Lounge Bar and relocation of the business to Mount Ommaney in November 2021, and also to Calamvale in February 2022. He stated that his father Mr James Lu had been involved in the business until July 2021, at which time Mr Lu senior retired and he, Mr Kelvin Lu, had been appointed as a director of the applicant company.

15. At the hearing, Mr Lu stated that the two existing cafés at Mount Ommaney and Calamvale were the only businesses presently being operated by the applicant. He provided details of two associated entities, being QQK Pty Ltd and L A Café Pty Ltd, which he described as family businesses and in which he held the office of director.

16. Mr Lu referred to the effect of the COVID-19 pandemic on the applicant’s business. He said that the pandemic had not been kind to any hospitality businesses, but that the applicant had made it through the pandemic by adopting new measures to preserve its sales. He stated that the applicant is now financially capable of looking after its employees.

17. The nominee gave evidence of her employment in the position and the tasks performed by her in the position.

    Evidence presented after the hearing

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

    a.A submission from Mr Lu dated 31 May 2022.

    b.A financial report of the applicant for the period ending March 2022.

    c.Payroll activity summaries prepared by the applicant for the 2016 to 2017 financial years, and for the periods from 23 September 2015 to 22 September 2016, and 23 September 2016 to 22 September 2017.

    d.Passports of Ms Tiare Tearoiti and Ms Pauana Tearoiti.

    e.A Centrelink PAYG payment summary of Ms Tonia Tearoiti, accompanied by her statutory declaration sworn 1 June 2022 and movement records from the Department.

    f.A summary of the employee details of Ms Fu-Ching Yang dated 24 May 2022 and an employment contract dated 5 September 2012.

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

19. 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.

20. Regulation 5.19(3)(f)(i)(B) requires that the applicant has complied with the applicable obligations under Division 2.19 of the Regulations relating to the applicant’s training requirements during the period of its most recent approval as a standard business sponsor.

    What are the training requirements for this application?

21. In relation to the Subclass 457 visa scheme, a person who was a standard business sponsor of at least one primary sponsored person was required by reg 2.87B to comply with requirements relating to training, specified by the Minister in an instrument in writing for that regulation, in each year they sponsored a Subclass 457 visa holder.

22. Mr Lu stated in his written submission that the nominee had been employed by the applicant whilst holding a Subclass 457 visa for at least two years of the three years preceding the date of the nomination application. The records of the Department confirm that the nominee was the holder of a Subclass 457 visa from 13 February 2015 to 13 February 2019. The Statement of Service produced by the applicant confirms that the applicant employed the nominee as a Subclass 457 visa holder from 2 March 2015.

23. In his written submission, Mr Lu stated that the applicants most recent standard business sponsorship approval is from 23 September 2015 to 22 September 2020. The records of the Department confirm that the sponsorship dated from 23 September 2015 to 23 September 2020.

24. 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 reg 2.87B of the Regulations, was repealed by the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth). A transitional provision introduced by those Regulations provides that a person is not required to comply with reg 2.87B(2) or (3) in relation to a period of 12 months ending on or after the commencement day (12 August 2018). As the only annual periods of the applicant’s most recent sponsorship which ended prior to 12 August 2018 were the years that ended on 22 September 2016 and 22 September 2017, the Tribunal finds that the applicant is required to comply with the training obligations in respect of those periods only.

25. The training benchmarks and training requirements are specified in Instrument IMMI 13/030, which was the instrument in force at the time of the applicant’s most recent standard business sponsorship approval. 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.

26. There is no evidence before the Tribunal of any expenditure by the business during the sponsorship period in payments allocated to an industry training fund that operates in the same industry as the business to meet Benchmark A.

27. The instrument provides that expenditure that can count towards Benchmark B includes:

    a.     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.

    b.     Evidence of payment of external providers to deliver training for Australian employees.

    c.     On-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage and demonstrating:

    i.The learning outcomes of the employee at each stage.

    ii.How the progress of the employee will be monitored and assessed.

    iii.How the program will provide additional and enhanced skills.

    iv.The use of qualified Trainers to develop the program and set assessments; and

    v.The number of people participating and their skill/occupation.

28. The instrument provides that expenditure that cannot count towards Benchmark B includes training that is:

    a.     Delivered on-the-job, other than on-the-job training which meets the requirements set out in the preceding paragraph.

    b.     Confined to only one or a few aspects of the businesses (sic) broader operations, unless the training is in the primary business activity.

    c.     Only undertaken by persons who are not Australian citizens or permanent residents.

    d.     Only undertaken by persons who are principals in the business or their family members.

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

29. In order to meet Benchmark B, the applicant is required to establish that it has incurred expenditure in the provision of training to employees of the business equivalent to at least 1% of the payroll of the business in the relevant period. It is necessary to consider the meaning of “the payroll of the business” for this requirement. The Department’s policy contained in its Procedures Advice Manual (PAM3) states that for this requirement, payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments, defined as wages in the Act relating to payroll tax in the relevant State/Territory, that the applicant has paid to their employees during the relevant 12-month period.

30. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: ‘When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case’.

31. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the amounts to be included in the calculation of an applicant’s payroll as set out in the policy are appropriate and considers that it is reasonably open to the Tribunal to determine the amount of the payroll on that basis. Accordingly, the Tribunal finds that the term ‘payroll’ in the instrument for any period includes wages and superannuation paid for that period. The applicant’s calculation of its payroll in the relevant period has been prepared on that basis.

    The evidence and submissions available prior to the hearing relating to training

1. As recorded previously in these Reasons, the relevant years of the sponsorship period for the purposes of the training requirements are the years ending on 22 September 2016 and 22 September 2017. Prior to the hearing, the applicant provided a submission from its accountant setting out the applicant’s calculated payroll and training expenditure for the two relevant sponsorship years, as well as the sponsorship year ending on 22 September 2018.

2. Based on the accountant’s calculations, the applicant, in its submission of 18 March 2022, provided the following details of training provided by it for employees:

Sponsorship period	Ending 22 September 2016	Ending 22 September 2017	Ending 22 September 2018
Total payroll	$298,191.79	$225,461.80	$118,259.90
Training fees paid (exclusive of GST)	$3,154.55	$3,000	$1,590.91
Recipients of training	T Tearoiti $1,700 Fu-Chin Yang $1,454.55	Fu-Chin Yang $3,000	Xuehao Li $1,590.91

1. By way of evidence of training expenditure, the applicant provided invoices and receipts as follows:

   a.From Elite Training and Development Pty Ltd dated 14 December 2015 for $1,700.

   b.From Empower Skills dated 16 May 2016 for $1,600 including GST.

   c.From Oceania College of Technology dated 11 January 2017 for $3,000.

   d.From Empower Skills dated 25 May 2018 for $1,200 including GST.

   e.From Australian Chamber of Education dated 4 June 2018 for $500.

2. Mr Lu stated in his submission that the applicant had complied with its obligations to support Australian employees by engaging external training providers during the sponsorship period.

3. The applicant provided evidence in the form of Mr Xuehao Li’s passport and a visa details check dated 20 March 2022 that Mr Li is a citizen of China and that his Australian immigration status is permanent resident or citizen.

4. The applicant provided a copy of Ms Tonina Tearoiti’s passport, evidencing that she is a citizen of New Zealand. The applicant also provided a statutory declaration from Ms Tearoiti declared on 19 May 2021 stating that she is an eligible New Zealand citizen and describing the training provided for her by the applicant in January and February 2016.

5. Mr Lu stated in his submission that the applicant had lodged an application in 2019 under the Temporary Residence Transition nomination stream in respect of a nominee Jung-Chen Fan and that the application had been approved in December 2019. He said that the applicant’s current representative provided the same training documents to the Department as had now been submitted in this application.

   The evidence and submissions at the hearing relating to training

6. At the hearing, the Tribunal advised Mr Lu that it was considering the applicant’s compliance with the training requirements for the periods ending on 22 September 2016 and 22 September 2017. The Tribunal explained the requirements under reg 2.87B and IMMI 13/030. Mr Lu stated that the migration agent who was representing the applicant at the time of the nomination application had failed to provide to the Department information regarding training expenditure which had been provided to the agent. The Tribunal acknowledged that relevant evidence had not been provided to the Department, leading to the refusal of the application.

7. The Tribunal noted that the payroll calculations for the sponsorship periods ending in September 2016 and 2017 were considerably lower than the wages and superannuation expenses incurred by the applicant in the corresponding financial years ending on 30 June 2016 and 2017. The Tribunal invited the applicant to provide further evidence regarding the accountant’s calculation of the payroll figures. Mr Lu stated that the calculations were for the relevant sponsorship periods and not for financial years. He said that the applicant had consistently paid training fees equivalent to 1% of payroll as required and that on occasions it had paid more than the required expenditure.

8. The Tribunal explained to Mr Lu the requirement in IMMI 13/030 that expenditure that can count towards Benchmark B by way of payment to external trainers must be for the delivery of training for Australian employees. The Tribunal noted that for the sponsorship period ending in September 2016, training had been provided for Ms Tearoiti and Ms Fu-Chin Yang and that for the sponsorship period ending in September 2017, training had been provided for Ms Yang. The employees were described in Mr Lu’s submission as Australian employees.

9. The Tribunal advised Mr Lu that the applicant had provided evidence that Ms Tearoiti is a New Zealand citizen and enquired how training for her would meet the requirement that training be provided for Australian citizens or permanent residents. Mr Lu stated that Ms Tearoiti’s passport was provided to show that she was a New Zealand citizen, that she has permanent residency, that she resides in Australia and he stated that there are equal working rights between New Zealand and Australia.

10. The Tribunal pointed out to Mr Lu that no evidence had been provided regarding the migration status of Ms Yang. He said that Ms Yang is currently an Australian citizen and that evidence would be provided to the Tribunal after the hearing. The Tribunal invited Mr Lu to provide evidence to show that the training of Ms Tearoiti and Ms Yang complied with the requirements in the instrument.

11. Mr Lu stated that the applicant had also provided training for Mr Xuehao Li in the sponsorship period ending in September 2018.

12. Mr Lu also referred to the Department’s approval in December 2019 of the application for a nomination in respect of a nominee, Jung-Chen Fan. He stated that this information had been provided to give the Tribunal a comparison between that application and the current application in circumstances where the two applications had been lodged at approximately the same time with similar circumstances but with different results. The Tribunal advised Mr Lu that, in considering this application, it would deal with the relevant evidence before the Tribunal, but that it would have regard to the approval of Ms Fan’s nomination.

13. The Tribunal explained to Mr Lu that reg 5.19(3)(f)(ii) refers to whether it is reasonable to disregard any non-compliance with reg 5.19(3)(f)(i). The Tribunal asked him why such non-compliance should be disregarded if the Tribunal did in fact find that there had been non-compliance. Mr Lu stated that the applicant had made consistent contributions to training staff to satisfy the requirement. He referred to the overview of the applicant’s history of payment of training fees contained in his written submission. He said that the applicant was financially stable and able to continue to provide training now and in the future. Mr Lu stated that the applicant had tried to provide advancement for its employees and that they didn’t mind paying higher contributions than required for the training and career development of the employees.

14. Before the closure of the hearing, the applicant requested and was granted a period of 14 days to provide further evidence and submissions.

    Evidence and submissions received after the hearing relating to training

15. After the hearing, the applicant provided Payroll Activity Summaries detailing wages and superannuation paid to all employees of the applicant for the 2016 and 2017 financial years and for the sponsorship periods ending on 22 September 2016 and 22 September 2017.

16. The applicant also provided the following documents relating to the applicant’s trainee, Ms Tonina Tearoiti:

    a.Copies of passports of her daughters Tiare-Taukura-Jurnee Tearoiti and Pauna Tearoiti, evidencing that they are citizens of Australia.

    b.A Movement Record issued by the Department which stated that Ms Tearoiti had arrived in Australia from New Zealand on five occasions since 2011 and had been issued with a Subclass 444 visa on each occasion.

    c.A statutory declaration from Ms Tearoiti dated 1 June 2022 stating that she is an eligible New Zealand citizen residing in Australia, that she and her family have resided in Australia since her first arrival here prior to 1997, that her husband and all four of her children hold Australian passports and that she is eligible to receive Centrelink benefits.

    d.A 2020 PAYG payment summary issued by Centrelink evidencing that Ms Tearoiti received JobSeeker payments in March 2020.

17. The applicant provided the following documents relating to the applicant’s trainee, Ms Fu-Chin Yang:

    a.A translated text message from Ms Yang stating that she did not wish to provide personal information.

    b.Evidence of Ms Yang’s employment by the applicant from 2 October 2012.

18. Mr Lu also provided a further submission to the Tribunal. In that submission, Mr Lu:

    a.Provided a comparison between wages and superannuation paid by the applicant in the 2016 and 2017 financial years and the sponsorship periods ending on 22 September in each of those years.

    b.Stated that he had contacted Ms Tearoiti and Ms Yang regarding their migration status when they were trained by the applicant. Mr Lu, after referring to Ms Tearoiti’s statutory declaration regarding her migration status and entitlement to receive Centrelink benefits, submitted that she is an eligible New Zealand citizen “who is the same as an Australian permanent resident” and entitled to receive Centrelink benefits. Mr Lu declared that she was an eligible New Zealand citizen whilst training for the applicant from 2015 to 2017.

    c.Stated that the applicant had sponsored Ms Yang in the position of Café and Restaurant Manager for Subclass 457 and 186 visas from October 2012. He said that he had been unable to find the nomination and visa approval letters in the applicant’s records and that he had been unable to obtain copies of those records from the applicant’s migration agent who had been involved in those applications because the agent had moved overseas. He said that he had contacted the Department to obtain information regarding Ms Yang’s visas but that there could be a delay of more than six months in obtaining those documents. He stated that Ms Yang had left the applicant’s employment in 2017 and that she had declined to provide her personal details (as evidenced by the text message from Ms Yang referred to in the preceding paragraph). Mr Lu declared that Ms Yang was an Australian permanent resident while training for the applicant from 2015 to 2017.

19. The records of the Department confirm that Ms Yang was issued with a Subclass 186 visa on 16 March 2015 and became an Australian citizen by conferral on 26 January 2017.

    Consideration of the evidence and submissions

20. The applicant is required to demonstrate that it has met reg 5.19(3)(f)(i) and, as set out in paragraphs 21 to 24 above, this requires compliance with training requirements in the sponsorship years which ended on 22 September 2016 and 22 September 2017.

21. The applicant had submitted that its payroll, including wages and superannuation, for the two sponsorship periods, were $298,191.79 and $225,461.80 respectively. At the hearing, the Tribunal noted that the wages and superannuation paid by the applicant in the 2016 and 2017 financial years according to its financial statements were $323,482 and $253,670 respectively. The Tribunal was concerned that the applicant’s calculations for payroll expenses in the two sponsorship periods were considerably lower than the expenses incurred in the corresponding financial years which ended less than three months before each of the sponsorship periods. After the hearing, the applicant provided itemised details of the wages and superannuation paid in the two sponsorship periods. The Tribunal accepts that the applicant’s calculations of its payroll in the two sponsorship periods are accurate.

22. Based on those calculations, the Benchmark B amounts which were required to be paid by the applicant to comply with its training obligations (being 1% of payroll for each sponsorship period) were $2,981.92 and $2,254.62 respectively. The Tribunal accepts that the applicant incurred training expenditure of $3,154.55 and $3,000 (both exclusive of GST) in the two sponsorship periods. It is then necessary to consider whether the training expenditure can count towards the benchmark in accordance with the provisions of IMMI 13/030.

23. The instrument provides that expenditure that can count towards this benchmark includes evidence of payment to external providers to deliver training for Australian employees (emphasis by the Tribunal). The instrument specifically states that expenditure that cannot count towards Benchmark B includes training that is only undertaken by persons who are not Australian citizens or permanent residents.

24. The training expenditure that the applicant relies on was $1,700 for training of Ms Tearoiti and $1,454.55 for training of Ms Yang in the first sponsorship period and $3,000 for training of Ms Yang in the second sponsorship period. The applicant was unable to provide evidence that Ms Yang was an Australian citizen or permanent resident during the relevant period of training (23 September 2015 to 22 September 2017). However, the information available to the Tribunal from records of the Department confirm that Ms Yang was an Australian permanent resident from 16 March 2015 and an Australian citizen from 26 January 2017. Accordingly, the Tribunal is satisfied that the training expenditure for Ms Yang of $1,454.55 in the first sponsorship period and $3,000 in the second sponsorship period can count towards Benchmark B.

25. The circumstances of Ms Tearoiti are different. She is and was at all relevant times a citizen of New Zealand. On each occasion during the relevant period that Ms Tearoiti entered Australia, she was issued with a Subclass 444 visa. This is a Special Category visa issued to New Zealand citizens allowing the visa holder to visit, study, stay and work in Australia indefinitely. It is usually applied for each time the visa holder enters Australia. The visa entitles the holder to stay in Australia until the holder leaves Australia unless it ceases because of other reasons, such as the grant of a permanent visa, the holder becomes an Australian citizen, or the visa is cancelled. When the visa holder leaves Australia, the visa ceases, and the holder must apply for a new visa if they wish to enter Australia again.

26. Ms Tearoiti is clearly not an Australian citizen. The Tribunal has considered whether she was at the relevant times an Australian permanent resident. Regulation 1.03 relevantly defines an Australian permanent resident as a non-citizen who, being usually resident in Australia, is the holder of a permanent visa. A permanent visa is defined in Section 30(1) of the Migration Act 1958 (the Act) as a visa to remain in Australia (whether also a visa to travel to and enter Australia) to remain indefinitely. Conversely, a temporary visa is defined in s 30(2) of the Act as a visa to remain in Australia (whether also a visa to travel to and enter Australia) to remain either during a specified period, or until a specified event happens or while the holder has a specified status. The Tribunal finds that Ms Tearoiti was not the holder of a permanent visa between 23 September 2015 and 22 September 2016. Accordingly, the Tribunal finds that she was not an Australian permanent resident throughout that period. Consequently, the training expenditure of $1,700 incurred by the applicant for the training of Ms Tearoiti in that first sponsorship period cannot count towards Benchmark B.

27. In his submission of 18 March 2022, Mr Lu referred to Ms Tearoiti as an Australian employee. In his submission of 31 May 2022, Mr Lu described Ms Tearoiti as an eligible New Zealand citizen, claiming that she was the same as an Australian permanent resident entitled to receive Centrelink benefits. The Tribunal has found that she was not an Australian permanent resident during the first sponsorship period.

28. The applicant has provided evidence that it received approval on 11 December 2019 for the nomination of Ms Jung-Chen Fan for the occupation of Café or Restaurant Manager. Mr Lu claimed at the hearing that the same evidence of training expenditure was provided to the Department in that matter as has been presented to the Tribunal in this current matter. As the Tribunal advised Mr Lu at the hearing, the Tribunal has, in considering this application, dealt with the evidence before the Tribunal in this matter relevant to the requirements of reg 5.19(3). The Tribunal is not aware of the evidence provided to the Department in relation to the nomination of Ms Fan.

29. The training expenditure incurred by the applicant that can count towards Benchmark B in the first sponsorship period is limited to the amount of $1,454.55 incurred for the training of Ms Yang. As the Benchmark B amount for that period was $2,981.92, the Tribunal finds that the applicant has failed to establish that it incurred expenditure equivalent to at least 2% of the payroll of the business to an industry training fund or equivalent to at least 1% of the payroll of the business in the provision of training to employees of the business during each year of the sponsorship period. Accordingly, the applicant has failed to establish that it has complied with the applicable obligations under Division 2.19 of the Regulations relating to the applicant’s training requirements during the period of its most recent approval as a standard business sponsor and the requirement in reg 5.19(3)(f)(i)(B) and consequently in reg 5.19(3)(f)(i) is not met.

    Should the non-compliance be disregarded?

30. The Tribunal then needs to consider whether it is reasonable, under reg 5.19(3)(f)(ii), to disregard reg 5.19(3)(f)(i). The Tribunal notes the Department’s policy, which states that “delegates should not apply r.5.19(3)(f)(ii) inflexibly but must always consider the merits of a particular case”. The policy in relation to disregarding reg 5.19(3)(f)(i) provides that disregarding this regulation should only be considered if the decision maker is satisfied the applicant 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.

31. For example, decision makers may form the view that it is reasonable to disregard reg 5.19(3)(f)(i) if:

    ·the applicant 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 on training); or

    ·the applicant has an aggregate expenditure on training over the term of their most recently approved sponsorship commensurate with the total training commitment for that period.

32. Conversely, a decision maker may form the view that it is not reasonable to disregard reg 5.19(3)(f)(i) if the applicant 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.

33. The same considerations regarding the application of the policy set out in paragraphs 30 and 31 above apply in the Tribunal’s consideration of reg 5.19(3)(f)(ii).

34. The first scenario referred to in the policy does not apply in the case of this applicant because there is no evidence of any payment by the applicant to an industry training fund during the sponsorship period. Therefore, there can be no aggregation of payments of expenditure to meet both Benchmarks A and B in a required year of the sponsorship.

35. The second scenario also does not apply because the aggregate expenditure incurred by the applicant on training during the two annual sponsorship periods was not commensurate with the total training commitment for those periods. The total training commitment was $5,236.54 ($2,981.92 in the first sponsorship year and $2,254.62 in the second sponsorship year). The total expenditure incurred by the applicant in that period which can count towards the benchmark was $4,454.55 ($1,454.55 in the first sponsorship year and $3,000 in the second sponsorship year).

1. The Tribunal has previously acknowledged in these Reasons that the applicant did incur training expenditure exceeding the amount of its training commitment over the period of the two sponsorship years. However, the Tribunal has found that training expenditure was incurred in respect of an employee who was not an Australian citizen or permanent resident. The fact that the applicant has incurred training expenditure in circumstances where the expenditure cannot count towards Benchmark B does not influence the Tribunal to disregard non-compliance with the training requirement.

2. The applicant incurred training expenditure to the extent of $1,590.91 for the training of Mr Xuehao Li in the sponsorship year that ended on 22 September 2018. The Tribunal has found that the applicant was not required to comply with the training requirement during that sponsorship period. The expenditure of $1,590.91 exceeds the Benchmark B amount that would have applied if the applicant had been required to incur training expenditure in that year (that amount being $1,182.60). Although the Tribunal does acknowledge that the applicant incurred this expenditure, the incurring of expenditure which was not legally required does not influence the Tribunal to disregard non-compliance with the requirements which did exist in the two earlier sponsorship years.

3. The Tribunal acknowledges that the applicant received approval on 11 December 2019 for the nomination of Ms Jung-Chen Fan for the occupation of Café or Restaurant Manager. As noted previously in these Reasons, Mr Lu claimed at the hearing that the same evidence of training expenditure was provided to the Department in that matter as has been presented to the Tribunal in this current matter. As the Tribunal as presently constituted is not aware of the evidence provided to the Department in the nomination of Ms Fan or, in fact, of the specific requirements for that application, the approval of the nomination of Ms Fan does not influence the Tribunal to disregard non-compliance with the applicant’s requirements in this matter.

4. Mr Lu made several submissions, both written and oral, to the effect that the applicant had satisfied its requirements in relation to training. As the Tribunal has found that the applicant did not, in fact, comply with its training obligations in the sponsorship year ending on 22 September 2016, the bare assertions by Mr Lu do not influence the Tribunal to disregard such non-compliance.

5. Having regard to all the evidence, the Tribunal finds that it is not reasonable to disregard reg 5.19(3)(f)(i).

6. Accordingly, the requirement in reg 5.19(3)(f) is not met.

7. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

   DECISION

8. The Tribunal affirms the decision under review to refuse 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.