A.D & S.M MCLEAN PTY LTD (Migration)

A.D & S.M MCLEAN PTY LTD (Migration) [2023] AATA 3806 (9 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  A.D & S.M MCLEAN PTY LTD
REPRESENTATIVE:  Mr Viet Long Nguyen (MARN: 1805265)
CASE NUMBER:  2012999
HOME AFFAIRS REFERENCE(S):          BCC2019/5763358
MEMBER:De-Anne Kelly
DATE:9 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 November 2023 at 9:22am
CATCHWORDS
MIGRATION–nomination – Medium-term stream – Marketing Specialist – no adverse information– Tasks correspond to specified occupation – application is compliant– no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– nominated position cannot be filled by an Australian citizen or permanent resident – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 1.03, 2.57, 2.72, 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 Home Affairs on 30 July 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 14 November 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(12)(c) of the Regulations because the position could be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned, and this was based on the RCB not approving the application because of the lack of rigour in the recruitment process. An extract of the delegates decision is shown at Attachment B.
The applicant was represented in relation to the review.
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
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in DE reg 5.19(9) which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 14 November 2019 the applicant trading as St Anne’s Vineyard lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Marketing Specialist at Myrniong Victoria 3341 on $54,000 in favour of Ms Thi Minh Thu LE. Mr Richard McLean is the Managing Director.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
The application was made on Form 1395 internet, identified the position of Marketing Specialist, identified the nominee for the position and made it under Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream and included the written certification.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either 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.
The Tribunal has no evidence of adverse information about the director or anyone associated with the director.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
Marketing Specialist is an occupation that does not require registration or licencing.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
The Tribunal can find no evidence of an unsatisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
If a debt is owing the Department will have processed such payment and as such the Tribunal considers that this requirement is met.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant has submitted financial documents and extensive evidence of it’s marketing and sales initiatives overseas particularly in Vietnam as evidence of an active and lawfully operating business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
There is no evidence the business labour hires to unrelated entities and the director confirmed this at the hearing.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) is met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The applicant provided extensive evidence of the marketing efforts undertaken by the nominee especially in Vietnam including travelling to exhibitions in Vietnam and promotion on social media. It is evident that there is a genuine need for the position of Marketing Specialist.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The tax return shows the following figures for FY 2022 and FY 2021 and while there was a loss in the latter the latest financial year has been very successful and more than made up for the accumulated tax losses. The owners are highly engaged in the business and evidently working hard to grow and market the business.
It is evident that the business has the capacity such that the identified person will be employed on a full-time basis in the position of Marketing Specialist for at least two years. The Tribunal finds that the there is no express exclusion of the possibility of the position being extended beyond two years.

Tax return 2022 2021

Income      9,110,435      10,429,586

Expenses      8,487,936      10,457,143

Profit         455,250 -          63,787

Tax losses carried forward -        396,770

Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in an instrument. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to an instrument. reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in an instrument. (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The current salary is $59,280 and is at least the amount specified in the relevant instrument for reg 2.72(15)(b).
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
There is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
The Tribunal needs to determine if the position is in regional Australia. The business is located in Myrniong Victoria 3341. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas therefore the position and business are located in regional Australia.
The business of the nominator is located at Myrniong Victoria 3341 and is in ‘that place’ that was specified in the employer nomination.
The applicant posted an advertisement on Seek on 22 October 2019 and the nomination was lodged on 14 November 2019.
The Tribunal accepts the position could not be filled by an Australian citizen or Australian permanent resident.
The tasks according to the job description and extensive documentation including a reference letter from the head of DFAT Australian trade in Hanoi correspond to the tasks of occupation Marketing Specialist specified by the Minister in an instrument in writing for this sub-subparagraph IMMI 17/048.
Commerce Ballarat as the regional certifying body RCB specified in the Ministerial instrument is responsible for assessing the application and on 8 September 2023 assessed and certified the application as meeting the requirements for SESR Employer Sponsored Stream nominations and while this was not for Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream it is considered that all other factors taken into account, the RCB is giving advice which is what is required in the statute.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
De-Anne Kelly
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.
Attachment B – Extract of Delegate’s Decision
Reasons for decision
The nominator A.D & S.M MCLEAN PTY LTD trading as ST ANNE'S VINEYARDS lodged a
RSMS Nomination (DE) application on 14/11/2019 for the occupation of Marketing Specialist, ANZCO: 225113 at base salary $54,000 per annum. The person included in the nomination was Ms Thi Minh Thu LE.
The nominator claims to meet the criteria for approval of the nomination of a position in
Australia under the ‘Direct Entry’ stream.
Included with the application were a number of documents including:
Signed Letter of Offer dated 23/10/2019 offering the nominee the position of Marketing
Specialist at St Anne’s Winery, Myrniong, Victoria;
Position Description
Organisation Chart;
Detailed Genuine Need statement;
An unsigned/undated submission uploaded to the nomination application on 4 March 2020 in
relation to the recruitment process undertaken.
On 3/03/2020, the Department received a completed Form 1404 Regional Sponsored
Migration Scheme – Regional Certifying Body (RCB) advice. The advice provided by the
Geelong Regional Certifying Body, City of Greater Geelong certified that the application did
not satisfy requirements due to the lack of rigour in searching the labour market and the
lack of evidence that demonstrates the local AMSR or supports the determination of the nominated salary.
In addition to the Form 1404, the RCB provided copy of evidence provided to them by the
nominating business including detailed submission dated 23/10/19 in which they explained
the need for the nominated position and also advising advertising undertaken on Seek.com
and Indeed.com and reason why the nominee was found to be the most suitable candidate.
Also a copy of Invoice dated 8/10/19 from Seek.com (for period) and copy of the Job
Advertisement on SEEK.com and Indeed.com.
The RCB also provided copy of the email and documents, including the completed form
1404 sent to the authorised Migration Agent on 3 March 2020. The RCB's cover email
to the authorised Migration Agent on 3 March 2020 confirmed that the application did
not satisfy RCB's assessment requirements due to the lack of rigour in searching the
labour market and the lack of evidence that demonstrates the local AMSR or supports the
determination of the nominated salary.
The RCB email of 3 March 2020 to the authorised Migration officer included the following
comments, viz:
“..Evidence was provided of one ‘round’ of advertising:
✃ 1x ad on SEEK – 8/10/2019. – advertised position listed in the Bendigo, Goldfields,
Macedon Ranges Region – Not Ballarat & Central Highlands.
✃ 1 x ad on indeed – 8/10/2019.
No recruitment summary was provided detailing any applicants and an assessment their
capabilities in relation to the duties of the role.
✃ The employment contract with the nominee is dated 23/10/2019
Evidence of recruitment strategies undertaken for the nominated position did
not show the business had reasonably exhausted the possibility of recruiting an
Australian citizen or permanent resident with the ability to fulfil the role and no other
evidence was provided supporting a skill shortage….”.
As mentioned, an unsigned/undated submission was uploaded to the nomination application
on 4 March 2020 in relation to the recruitment process undertaken. It stated in part:
“…The sponsor has posted two job advertisements to source local candidates for the
position of a Marketing Specialist for 30 days (1 month). There were not many responses
to the job advertisements. The Sponsor has thoroughly reviewed the applications for those
who have responded to the job advertisements. However, none of the candidates were
appropriate for the role due to their lack of qualifications or experience. The nominee
was an exception. The Sponsor was extremely impressed with both her experience and
her qualifications. She is a suitable candidate for the position. We have also contacted a
recruitment agent in Ballarat, people@work, the staff stated that there is no local candidate inthe Myrniong area. As such, the Sponsor has decided to employ her without further delay…”.
In making my assessment, I have considered the relevant supporting documentation.
While I have taken the advice of the RCB into account, in making my assessment I have
also considered the information provided by the applicant in relation to the position and
recruitment process undertaken.
The evidence provided indicates that the signed Job Offer of 23 October 2019 to the
nominee was made prior to the completion of the advertising period. The advice that they
had also contacted a recruitment agent in Ballarat i.e. people@work and were advised that
there was no local candidate in the Myrniong area was not supported by any evidence.
There was no evidence that any other Recruitment agencies had been contacted for assistance. I am not satisfied that the evidence provided demonstrates that nominated position cannot be filled by an Australian citizen or permanent resident who is already living locally, or who would move to the area where the nominated position is located.
Consequently, I do not consider that the nominator meets paragraph 5.19(12)(c) and
therefore subregulation 5.19(12) is not met. As a result paragraph 5.19(9)(j) is not met.
Therefore paragraph 5.19(4)(f) is not met and the nominator does not meet subregulation
5.19(4).

[2023] AATA 3806

9 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Tax return		2022	2021
Income	9,110,435	10,429,586
Expenses	8,487,936	10,457,143
Profit	455,250	- 63,787
Tax losses carried forward		- 396,770