Zahid Ali (Migration)

Zahid Ali (Migration) [2019] AATA 309 (14 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Zahid Ali
CASE NUMBER:  1705951
DIBP REFERENCE(S):  BCC2016/3040920
MEMBER:Katie Malyon
DATE:14 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 January 2019 at 12:12 pm
CATCHWORDS
MIGRATION – sponsorship nomination – temporary transition stream – Restaurant Manager – sole trader – documentary evidence submitted – new contract addresses criteria – nominated occupation – consistent with ANZSCO description – nominee working full time – base salary within appropriate range – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB , 245, 359, 359A
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 March 2017 to refuse the nomination made by sole trader Zahid Ali T/A Zahid Restaurant under r.5.19 of the Migration Regulations 1994 (the Regulations).
Mr Ali applied for approval of his nomination on 13 September 2016. The requirements for approval of a nomination of a position in Australia are found in r.5.19 of the Regulations which contains 2 alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream; and, a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) of the Regulations and meets all 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) of the Regulations.
In this case, Mr Ali applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. Mr Ali nominated the position of Cafe or Restaurant Manager for nominee, Mr Jia Imran Hameed Khan.
The delegate refused the application on the basis that Mr Ali’s nomination did not satisfy r.5.19(3)(f) of the Regulations because, due to the limited nature of documentation lodged with the Department, she was not satisfied that Mr Ali had fulfilled the commitment made in relation to training his Australian citizen or permanent resident staff during the of the most recent three-year period of standard business sponsorship approval.
The Tribunal conducted a review of the decision to refuse Mr Ali’s nomination as a combined hearing with its related review of refusal of Mr Khan’s Subclass 186 visa application (AAT File 1709881). Both Mr Ali and Mr Khan appeared before the Tribunal on 3 January 2019 to give evidence and present arguments.
Both Mr Ali and Mr Khan were represented in relation to their respective reviews by the same registered migration agent. The representative also attended the hearing.
Background
Mr Ali owns and operates Zahid Restaurant, a Pakistani & Indian restaurant, based in Bankstown, Sydney. Zahid Restaurant was established in July 2012 and currently employs 6 people including Australian citizen Mr Ali as Chef as well as 2 part-time Cooks, both of whom are permanent residents of Australia. He is also a shareholder and co-director of Faheem Fast Food Pty Limited (Faheem), a company which operates another Pakistani & Indian restaurant in Newtown, Sydney.
On 5 September 2018, the Tribunal wrote to Mr Ali pursuant to s.359A of the Act inviting him to comment on information that would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse the nomination made by him. Mr Ali was informed that:
·     at the time when he made the nomination application to the Department in his capacity as a sole trader and also when he lodged the review application with the Tribunal, Mr Ali provided evidence of the following receipts for payment for courses offered by registered training organization Australis Institute of Technology and Education (the Institute):
o Receipt No. 201406003 for $750 dated 4 June 2014;
o Receipt No. 201506013 for $1,400 dated 19 June 2015;
o Receipt No. 201512007 for $800 dated 18 December 2015; and,
o Receipt No. 201607008 for $1,000 dated 8 July 2016;
·     at the time when he made the nomination application to the Department and also when he lodged the review application with the Tribunal, Mr Ali provided the names of the following individuals who have undertaken training offered by the Institute:
oMr Tariq Laghari;
oMr Syed Faiz Gilani; and,
oMr Nayyar Zafar;
·     the Department has provided the Tribunal with its file and which contains details of the delegate’s communications with the Institute in relation to Mr Ali’s claims regarding meeting his training obligations as a sponsor;
·     the Institute advised the Department it could not confirm that any of the receipt numbers or any of the receipts referred to above have been issued to Mr Ali; and,
·     the Institute also advised that there have not been any individuals by the names mentioned above who have undertaken any training with, or through, the Institute.
As a result, there is no evidence that Mr Ali has fulfilled the training requirements in accordance with Training Benchmark A or B for each year of the 3 year validity period of his most recent sponsorship approval (from 16 May 2013 to 16 May 2016) and, further, it appears he has provided false or misleading information.
The Tribunal’s letter to Mr Ali was sent to the representative who lodged his review application with the Tribunal. Mr Ali was requested to provide any comments or response to the information in the Tribunal’s letter on or before 19 September 2018.
On 12 September 2018, the Tribunal received an email from Ms Ankita Gohil, AITE Student Support officer with the Institute confirming that the information outlined above at para [8] is in the Institute’s systems and, further, documents issued by the Institute to Mr Ali (that is, the receipts and completion certificates ) are true and correct. Ms Gohil used an email address @australisinternational.com.au. Mr Ali was copied in as a recipient of the email sent by Ms Gohil to the Tribunal. Ms Gohil notes that the 3 named trainees attended the selected training programs and completed the programs under their respective schedule of enrolment. She also provided further copies of the receipts issued to Mr Ali and evidence of enrolment for each of the 3 named trainees. In addition, Ms Gohil notes that she is unable to locate any contact made by the Department with the Institute and, accordingly, has responded to the Tribunal’s request to Mr Ali (of 5 September 2018) direct to the Tribunal itself so as to confirm that evidence of training (as lodged by Mr Ali with both the Department and the Tribunal) is true and correct, and that it is not false or misleading.
Subsequently, on 14 September 2018, the Tribunal wrote to Mr Ali pursuant to s.359(2) of the Act inviting him to provide further and updated information to address specific requirements of the Regulations. In response, Mr Ali provided an extensive range of documents to the Tribunal.
Having perused documentation provided in response to its s.359(2) letter, the Tribunal invited both Mr Ali and nominee Mr Khan to attend a hearing. The Tribunal had some residual concerns in relation to the email from Ms Gohil of the Institute due to her email address being @australisinternational.com.au rather than @australisinstitute.nsw.edu.au as indicated on the Institute’s website as well as that of the Commonwealth Register of Institutions and Courses for Overseas Students. Accordingly, the Tribunal contacted the Institute by telephone and spoke with its Accountant, Mr Subrat Shakya. Mr Shakya informed the Tribunal that Ms Gohil works with the Institute but is currently on leave. In addition, he noted that the Institute adopts 2 email address formats: not only does it use @australisinstitute.nsw.edu.au but is also uses @australisinternational.com.au. In addition, he informed the Tribunal that the person identified in the Department’s file as the source of information provided to the delegate and outlined above at para [8], a Mr Shah Adat, used to work in the Accounts section at the Institute but he no longer works there. Acknowledging the significance of the information to the Tribunal, Mr Shakya requested full details of receipt numbers and attendees be sent to him so that he could review the Institute’s records for confirmation regarding the authenticity of documentation and information provided by Ms Gohil.
On 21 December 2018, Mr Shakya responded in writing to the Tribunal. Essentially, he reiterated and confirmed the information provided by Ms Gohil.
Hearing
At the commencement of the hearing, the Tribunal noted that the Department’s file, when initially provided to the Tribunal, had been issued with a Certificate pursuant to s.375A of the Act in relation to information recorded in 3 folios. The Tribunal observed the effect of such a certificate is that disclosure of information the subject of the certificate would, in the opinion of the delegate, be contrary to public interest. However, the Tribunal had written to the Department and requested its s.375A Certificate issued having regard to the fact that the certificate does not state a valid ground for public interest immunity: rather, it merely states ‘internal information’ as the basis for non-disclosure of information to Mr Ali. In response, the Department withdrew its s.375A Certificate. During the hearing, the Tribunal observed that the information which had been the subject of the s.375A Certificate merely outlined communication between the delegate and Mr Adat of the Institute on 7 March 2017 and which was set out in the Tribunal’s s.359A letter as summarised at para [8] above. In passing, the Tribunal notes that the information was not referred to in the delegate’s decision, a copy of which was provided to the Tribunal.
Both Mr Ali and Mr Khan provided the Tribunal with independent evidence in relation to duties undertaken by Mr Khan, the size and hours of operation of the business as well as current staffing arrangements. Zahid Restaurant operates as an eat-in restaurant and a take away cafe as well as a function centre. The function room accommodates up to 90 people and generates approximately 10% of business revenue from events such as wedding parties, 21^st birthdays and corporate events. Approximately 25% - 30% of revenue is currently derived from Uber deliveries. By far the significant majority of revenue is derived from the 70 - 80 customers, particularly families, who dine in the restaurant on Fridays, Saturdays and Sundays. Every evening, Mr Ali splits his time as a Chef between each of his 2 restaurants: he starts off in Bankstown at Zahid Restaurant before moving on to Newtown.
The Tribunal discussed with both Mr Ali and Mr Khan its concerns in relation to the contract of employment dated 6 September 2016 lodged with both the Department and the Tribunal which refers, in a number of clauses, to rights and obligations of ‘the Company’ as the employer. Mr Ali told the Tribunal that he also operates another restaurant in Newtown in which he is both a shareholder and director of the business: that business is run by Faheem. However, Zahid Restaurant is completely independent: it is owned and operated by him personally, in his capacity as a sole trader. Mr Ali added that any reference in the contract of employment to ‘a company’ employing Mr Khan was a complete oversight and error. In the circumstances, Mr Ali and Mr Khan agreed to provide the Tribunal with a fresh contract of employment which removes any ambiguities regarding the identity and status of the employer in light of the fact that the nomination has been made by Mr Ali in his personal capacity.
Questioned about the cash flow of the business, Mr Ali and Mr Khan independently indicated that Zahid Restaurant has been adversely affected by construction in the Bankstown area over the last 18 months. The construction of multiple high-level residential accommodation has resulted in limited parking space which has impacted customers’ access to the restaurant: hence, revenue has dropped somewhat in the last 18 months and it is not anticipated to pick up substantially again until construction is completed in the next 12 months or so. The drop off in revenue has seen staffing numbers drop from 8 to 6 people at present.
The Tribunal found both Mr Ali and Mr Khan to be credible witnesses.
Information lodged after the hearing
After the hearing, the representative provided further documentation to the Tribunal. Relevantly, this included:
·a signed contract of employment made between Mr Ali and Mr Khan dated 7 January 2019 which includes a detailed position description and which is conditional upon grant of a Subclass 186 visa to Mr Khan – reference in the earlier contract to ‘the Company’ has been removed;
·Business Activity Statements (BAS) for Zahid T/A Zahid Restaurant for the period 1 July 2018 - 30 September 2018;
·letter from Mr Ali’s CPA and tax agent dated 3 January 2019; and,
·ATO Notices of Assessment issued to Mr Khan for years ended 30 June 2015 to 30 June 2017.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges that it has significantly more information available to it than that which was available to the delegate.
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 which is set out in r.5.19(3) of the Regulations and which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met. If any of the requirements are not met, the nomination must be refused.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, be accompanied by the prescribed fee and, where applicable, 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.
On the basis of information in the Department’s file, the Tribunal is satisfied that the application was made using the relevant on-line form and was accompanied by the prescribed fee. The relevant certification under s.245AR(1) of the Act was provided in the application form.
The Tribunal is also satisfied that Mr Ali’s nomination identified an occupation in relation to the position, namely Cafe or Restaurant Manager ANZSCO 141111, which is listed in ANZSCO and has the same 4-digit occupation unit group as the occupation carried out by nominee Mr Khan as holder of a Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) of the Regulations is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be, or have been, the standard business sponsor who last identified the holder of a Subclass 457 visa in a nomination made under s.140GB of the Act, and be 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.
Departmental records confirm that Mr Ali was the standard business sponsor which last identified Subclass 457 visa holder Mr Khan in a nomination made under s.140GB of the Act. The Department’s records also confirm that Mr Ali was not granted his most recent business sponsorship approval on the basis of meeting r.1.20DA, r.2.59(h) or r.2.68(i) of the Regulations.
Mr Ali has provided the Tribunal with various documents to confirm that he is actively and lawfully operating the business of Zahid Restaurant in Australia as a sole trader including: ABN Lookup search; personal tax returns prepared by his Accountant for years ended 30 June 2014 to 30 June 2017; a tax lodgement status report from the ATO confirming lodgement history of the tax returns for the business of Zahid Ali T/A Zahid Restaurant; financial statements for Zahid Ali T/A Zahid Restaurant covering the period from 1 July 2013 to 30 June 2017 signed by Mr Ali and his Accountant; BAS for the years ended 30 June 2014 to 30 June 2018 and the quarter to 30 September 2018 using the tax agent portal; organisation charts for Zahid Ali T/A Zahid Restaurant for years ended 30 June 2014 to 30 June 2018 including the position title and names of all employees as well as the basis of their employment (full-time, part-time or casual); and, PAYG Payment Summaries for all employees of Zahid Restaurant for each 12 month period from 30 June 2014 to 30 June 2018. The Tribunal is satisfied that documentation provided confirms that Mr Ali is actively and lawfully operating the business Zahid Restaurant in Australia.
Given the above, the requirement in r.5.19(3)(b) of the Regulations is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c) of the Regulations, either the nominee must:
·have been employed full-time in Australia in the position for which s/he holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or,
·hold a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the nomination application.
Departmental records confirm Mr Khan was granted a Subclass 457 visa on 14 August 2014 on the basis of being nominated by Mr Ali as his Cafe or Restaurant Manager at Zahid Restaurant. Since then, Mr Ali has employed him on a full-time basis. Mr Ali has provided PAYG Payment Summaries for Mr Khan which supports this finding. Mr Khan also provided the ATO Notices of Assessment issued to him for years ended 30 June 2015 to 30 June 2017 which confirm the amounts sets out in the PAYG Payment Summaries provided. In addition, Mr Ali provided evidence of his payment of superannuation to Mr Khan’s super fund. The Tribunal has also considered the oral evidence from Mr Khan in relation to his role at Zahid Restaurant and the duties performed by him as confirmed by independent oral evidence from Mr Ali.
Having regard to evidence provided, the Tribunal is satisfied that nominee Mr Khan has been employed by Mr Ali to work full-time in the position of Cafe or Restaurant Manager in Australia as the holder of a Subclass 457 visa for at least 2 years in the 3 year period immediately before the current nomination was made by Mr Ali.
Given the above findings, the requirement in r.5.19(3)(c) of the Regulations is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i) of the Regulations). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
Mr Ali has provided the Tribunal with evidence of the financial viability of his business Zahid Restaurant. This includes financial statements (profit and loss, balance sheet) for the years ended 30 June 2014 to 30 June 2017, Mr Ali’s personal tax returns for years ended 30 June 2014 and 30 June 2017 as well as BAS for the years ended 30 June 2014 to 30 June 2018 and the period 1 July 2018 to 30 September 2018. Revenue generated by Zahid Restaurant initially averaged annual growth of 20% per annum but has fallen off somewhat more recently. Both Mr Ali and Mr Khan independently told the Tribunal this has been due to construction of residential units in the immediate vicinity of the restaurant in the last 18 months which has adversely impacted car parking spaces available for customers. It is anticipated that revenue will resume its growth pattern when construction work is completed in the next 12 months or so. Documentation provided supports a finding that the business of Mr Ali T/A Zahid Restaurant is financially viable: it has consistently operated at a profit and reported strong positive equity.

The signed contract of employment dated 7 January 2019 provides for Mr Khan’s ongoing employment with Mr Ali for a period of at least 2 years from the date of grant of his Subclass 186 visa: the contract does not exclude the possibility of renewal thereafter. During the course of the hearing, Mr Ali told the Tribunal that Mr Khan is an extremely valuable and loyal employee whose dedication has enabled him to contemporaneously operate not only his Zahid Restaurant in Bankstown but also the other restaurant in Newtown which he operates with his business partner through the company Faheem. He added that, over the last couple of years, he has lost some staff – ‘they come and go’ – and so he especially appreciates the reliable and consistent support that Mr Khan has provided to him.
Based on information provided, the Tribunal is satisfied that Mr Ali will employ Mr Khan on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending this period of employment.
Given the above findings, the requirement in r.5.19(3)(d) of the Regulations is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
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.
The signed employment contract dated 7 January 2019 provided to the Tribunal indicates Mr Khan’s base salary will be $55,000 per annum plus superannuation. This represents a slight increase on his current salary of $54,000 per annum plus superannuation as set out in the PAYG summary for year ended 30 June 2018 and otherwise confirmed by Mr Khan’s ATO Notices of Assessment. There is no Australian performing equivalent work as the nominee at the same location. The Tribunal has considered information provided by Mr Ali, including printouts from both Seek and Jobactive, regarding comparable positions in ethic themed restaurants in suburban Sydney: this information indicates that the median salary for the position of Cafe or Restaurant Manager as at the date of this decision is $55,000 plus superannuation.
On the basis of this information, the Tribunal is satisfied that the base salary offered to Mr Khan is within the appropriate range of that normally paid to a Cafe or Restaurant Manager with his level of experience in suburban Sydney. Having reviewed the contract of employment dated 7 January 2019, the Tribunal is also satisfied that the terms and conditions of employment applicable to the nominated position for Mr Khan are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) of the Regulations is met.
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.
Mr Ali’s most recent approval as a standard business sponsor commenced on 16 May 2013 and was valid for the 3 years to 16 May 2016. At the time of lodgement of the nomination, Mr Ali provided the Department, amongst other various documents, with the receipts confirming payment to the Institute for attendance at courses by 3 staff members, an organisation chart for the restaurant as well as Financial Statement for Zahid Ali T/A Zahid Restaurant for the year ended 30 June 2016. However, as noted above, the delegate found that Mr Ali had not provided sufficient evidence to demonstrate that he had fulfilled training commitments during the most recent sponsorship approval owing to the fact that no evidence was provided to demonstrate that training had been delivered to Australian citizens and or permanent residents. The delegate made no mention of her conversation with Mr Adat of the Institute in the decision, a copy of which was provided to the Tribunal.
Accompanying his review application to the Tribunal, Mr Ali provided evidence of the Australian citizenship and/or permanent residence status of the employees of Zahid Restaurant who received the benefit of training provided by the Institute and which was paid for by Mr Ali. The Tribunal has independently confirmed with the Institute’s Accountant that training was provided to each of Tariq Laghari, Syed Faiz Gilani and Nayyar Zafar, as claimed by Mr Ali. In addition to providing evidence of the Australian citizenship or permanent residence status of each of these 3 employees, Mr Ali has also provided (at the Tribunal’s request) the PAYG Payment Summaries for all staff employed by Zahid Restaurant from 1 July 2013 to 30 June 2018. The Tribunal is satisfied that Tariq Laghari, Syed Faiz Gilani and Nayyar Zafar were, at the relevant times, employees of Mr Ali T/A Zahid Restaurant.
For the purpose of determining whether Mr Ali has fulfilled commitments made relating to meeting training requirements and complied with applicable obligations during the three-year period of his most recent sponsorship approval, the Tribunal has considered the payroll for the years ending 30 June 2014, 2015 and 2016: in the opinion of the Tribunal, these periods are sufficiently proximate to each of the relevant 12 months of the sponsorship approval which ended on 16 May 2016. Taking into consideration evidence provided, the Tribunal finds the payroll and training expenditure conducted over those periods were as follows:

Year ending 30 June Payroll Training expenses

2014 $70,818 $750

2015 $133,887 $1,400

2016 $169,944 $800

Total $374,649 $2,950

To meet Training Benchmark B, a total expenditure of $3,747 would be required. From the information set out in the Table above it is evident that, while Mr Ali spent more than 1% of payroll in each of the years ending 30 June 2014 and 2015 on training his staff, he spent less than the requisite 1% in the year ended 30 June 2016. Accordingly, Mr Ali did not fulfil the commitment made relating to training for each year in the relevant period.
However, on 8 July 2016 - that is, just over a week after the end of the 2016 financial year and within 2 months of end of the 3 year sponsorship approval period - Mr Ali paid the Institute $1,000 for a further week’s training delivered to Australian citizen Mr Laghari to enable him to undertake 2 further subjects towards his Diploma of Hospitality Management. The Tribunal notes it had been Mr Laghari who was also the beneficiary of the first tranche of a week’s training in January 2016 valued at $800 (referred to above at in the Table at para [46]) and paid for by Mr Ali. Although payment of the $1,000 for the second tranche of training offered to Mr Laghari by the Institute cannot be taken into account for the purposes of assessing compliance with r.5.19(3)(f)(i) of the Regulations - because it falls outside the three-year period of approval of the standard business sponsorship - it nonetheless indicates an ongoing commitment by Mr Ali to training his staff. It brings total training expenditure to $3,950.
In the circumstances, the Tribunal has - consistent with r.5.19(3)(f)(ii) of the Regulations - considered whether it is reasonable to disregard Mr Ali’s failure to meet his training commitment in the last 12 month period of his most recent sponsorship approval. As noted above, the Tribunal found Mr Ali to be a credible witness.
Although Mr Ali has not met his training obligation in the last relevant 12 month period, he nonetheless exceeded his obligation to meet Training Benchmark B within 2 months of expiry of his sponsorship approval on 16 May 2016. In addition, the Tribunal observes that Mr Ali has kept necessary records relating to his meeting training obligations as required by r.2.82(3)(g) of the Regulations: he was able to provide receipts issued by the Institute and completion certificates issued to all staff who attended training delivered by the Institute. In the circumstances, the Tribunal considers it reasonable to disregard Mr Ali’s near two-month delay in meeting his training obligations. Based on evidence provided, Mr Ali has continued to demonstrate his commitment to training Australian citizen and permanent resident staff. The Tribunal also accepts that the Institute delivers its training programs in tranches which do not necessarily accord with a sponsorship approval period and that, to best develop a particular staff member’s skills, it may be necessary to undertake training outside the requisite three-year period, as occurred in this case.
Accordingly, the requirement in r.5.19(3)(f) of the Regulations is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or a 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 r.1.13A and r.1.13B of the Regulations.
There is no information before the Tribunal to indicate there is any adverse information known to the Department about Mr Ali or a person associated with him. As such, the requirement in r.5.19(3)(g) of the Regulations is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
There is no information before the Tribunal to suggest that Mr Ali does not have a satisfactory record of compliance with workplace relations laws. In this regard, the Tribunal has searched the on-line records of the Fair Work Ombudsman’s website for reference to Mr Ali. It has found not reference to him. Accordingly, the requirement in r.5.19(3)(h) of the Regulations is met.
Conclusion
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 a position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Katie Malyon

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.
oOOo

[2019] AATA 309

14 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Year ending 30 June	Payroll	Training expenses
2014	$70,818	$750
2015	$133,887	$1,400
2016	$169,944	$800
Total	$374,649	$2,950