ABC Telecom Pty Ltd (Migration)

ABC Telecom Pty Ltd (Migration) [2020] AATA 6156 (23 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ABC Telecom Pty Ltd
CASE NUMBER:  1803919
HOME AFFAIRS REFERENCE(S):          BCC2017/340221
MEMBER:De-Anne Kelly
DATE:23 July 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 23 July 2020 at 3:04pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – tasks of position and labour market testing – some advertising for local candidates referred to different kind of store – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), s 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASE
Old Swanport Investments Pty Ltd v Minister for Immigration [2015] FCCA 2139
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 31 January 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 25 January 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the nominated position’s tasks did not correspond to the tasks of the ANZSCO 142111 Retail Manager as required to satisfy the instrument.
The applicant appeared before the Tribunal on 23 June 2020 to give evidence and present arguments. The nominee appeared at the hearing as a witness for the employer nomination refusal review. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages to assist the witness and he was to make a request whenever he found he needed interpretation, but limited interpretation was required.
The applicant was represented in relation to the review by its registered migration agent, Mr Yuxin Fu MARN: 1465212 of Austin Migration, Sunnybank QLD 4109 and later by Mr Jaiwei Feng MARN: 1802373 of the same firm.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant, ABC Telecom Pty Ltd ABN 48 613 900 164 commenced trading on 3 January 2017 from a shop in Lavelle Street, Nerang QLD 4211. The application states that they have four Australian employees. The business services and sells mobile phones and accessories both from the shopfront and online through Gumtree.
Financials for the year to 30 June 2018 show income of $843,300 with wages of $103,407 to make total expenses of $797,240 for a profit before tax of $46,060.
On 27 January 2017 the applicant lodged a Regional Sponsored Migration Scheme visa (Subclass 187) employer nomination application in the direct entry stream for the position of retail manager on a salary of $50,000 per annum in favour of Mr Zongmin Yan.
Documents including the following were submitted with the original application:
1)Acknowledgement of nomination application received dated 25 January 2017.
2)Online application for employer nomination dated 25 January 2017.
3)Regional certifying body advice on form 1404 dated 24 April 2017.
4)Bank statements for the applicant from 2016 and 2017.
5)Business activity statements Q3, Q4 - 2016.
6)Employment agreement dated 20 January 2016 between the applicant and Ting Wei (the employee) at email address [email protected] although signed by Zongmin Yan and the employer on 21 January 2017, including position description. (There was no explanation for the disparity in the dates on the front of the agreement and the date of signature or the different names for the employee).
7)Market salary analysis including selection of online advertisements for store managers.
8)Selection of Gumtree advertisements for the applicant for mobile phones and refurbished phones.
9)    Financial report for the year ended 30 June 2016 for unrelated entity with the same director.
10)Business plan for the applicant.
11)Selection of Gumtree images for the applicant’s products.
12)Payslip for the nominee dated 31 May 2017.
13)ABN look up for the applicant dated 31 July 2017.
14)Timeline of applicant development:
01 Aug 2016: ABC Telecom Pty Ltd established
04 Oct 2016: Leased Shop 8, 6 Lavelle St, Nerang QLD 4211
Dec 2016: Open the door and Trial Operation
Jan 2017: Store Manager Zongmin YAN part time managing the Nerang
Store
Feb-Mar 2017: Store Manager Zongmin YAN recruited and trained team
members, established online sales platform and advertisements
01 Apr 2017: Sales of Jan to Mar 2017 achieved more than AUD$160,000
under Zongmin YAN’s leadership and management, increased by 800%
comparing with last quarter.
Zongmin YAN commenced full-time employment in ABC Telecom
May 2017: Company Website completed
15)Summary of domestic recruitment efforts by the applicant listing an online seek.com advertisement placed from 11 December 2016 to 10 January 2017 with 15 applications received and signed by the director dated 11 January 2017.
16)Seek.com receipt for advertisement placed 11 December 2016 for $297.
17)Seek advertisement for retail manager with details as follows; dated 11 December 2016, location Gold Coast, salary $45,000 to $59,999, work type full-time with classification-retail and consumer products, management-store; which reads as follows:
Retail manager needed for our Beauty salon store located in Nerang, Gold Coast
Key duties and responsibilities:
1.    Day to day operation management including ordering, pricing, supervising, coordinating, and all other tasks necessarily to be performed by a manager.
2.    Receiving, analysing and responding to customers feedback.
3.    Planning and organising functions.
4.    Selecting and training staffs [sic]
5.    Staff management including roster, coordination, motivating, supervising and appraisal on staff performance.
6.    Ensuring a pleasant, friendly, clean and comfortable store environment.
7.    Maintain a high hygiene standard and compliance with safety and health regulations and industry standard.
8.    Reporting directly to the board of directors.
Skills and experience:
·Diploma qualification or above.
·Excellent communication and people skills.
·Strong team leadership.
·Managerial experience preferred but not essential.
·Ability of planning, training, coordinating and organising.
·Motivation skills.
·Fluent written and spoken English.
18)Summary of applications received for the position of retail manager showing 15 applicants listed with applicant number three, an Australian citizen who was interviewed but deemed unsuitable: “candidate does not demonstrate relevant knowledge in relation to mobile accessories” and candidate number 15 as the nominee who was interviewed and deemed suitable “demonstrate relevant experience and qualification. Having confident and intention to service the business for a long time. However, candidate does not have permanent resident[sic] allowing him to work in this full-time position.”
19)CV for the nominee.
20)Letter from the applicant dated 21 July 2017 regarding start-up vacancy and stating:
We advertised this position on Seek for four weeks and received 15 job applications.
We carefully reviewed all job applications. The nominee, Zongmin YAN, saw our
online advertisement and dropped his resume in our store. Considering the nature of
the business and the job duties of the nominated position, we found the nominee,
Zongmin YAN, is the most suitable candidate. However, he does not have valid work
permission to commence this permanent employment.
We are convinced by his efforts and sincerity for this job through phone interview and
interview in person. If Zongmin is an Australian permanent resident, we will absolute
to employ him to commence this employment. Considering the nature and size of the
business, a suitable experienced personnel from the local labor market is our first
option. However, when the position is not able to be filled locally, we have no
alternative but to hire an experienced overseas personnel to assist with the
development of the business.
21)Retail shop lease with lessee as the director for a business called Simjase Pty Ltd for a shop in Orchid Avenue, Surfers Paradise and acknowledgement attached showing Simjase Pty Ltd leasing a shop in Lavelle, Street Nerang.
22)Organisational chart showing board of directors; retail store manager (the nominee); two store assistants and two repair technicians.
23)Financial report for the year ended 30 June 2015 for entity SkyTree Electronics.
24)Photos of exterior and interior of applicant’s mobile phone shop in Nerang.
25)Letter from the applicant dated 8 August 2017 as a reference for the nominee.
26)Photos that appeared on Nine News Gold Coast detailing an armed robbery at the Nerang store and including an image of the nominee.
27)Selection of tax invoices addressed to the applicant.
28)PAYG payment summary for the nominee from 1 December 2016 to 30 June 2017.
29)PAYG payment summaries for other staff.
30)Letter from bank about merchant facility and statements for merchant facility turnover.
31)Second-hand dealer’s and pawnbroker’s licence for the applicant with date of expiry 31 January 2020.
32)Certificate of currency for business insurance.
33)Detailed job duties letter dated 25 January 2018 comparing tasks to the ANZSCO including screenshot of the seek.com advertisement titled recruitment efforts showing 15 applications.
34)Email dated 2 February 2018 from the director to Department of Home Affairs asking them to revisit the nomination refusal as the director is busy and serves in the defence force.
35)Response from Home Affairs stating the decision was made based on the evidence available to the case officer.
36)Evidence of enlistment by the director in Australian Army reserve.
Documents including the following were provided with the review application:
37)notification of refusal of nomination application dated 31 January 2018.
38)Online application for review.
39)Invitation to provide information from the Tribunal dated 24 February 2020.
40)Request for extension of time dated 9 March 2020 from registered migration agent.
41)Tribunal letter granting extension to 24 March 2020.
42)Company tax return and financial report for financial year 2018.
43)Organisational chart showing Board of Directors; retail store manager; one store assistant and one mobile repair technician.
44)ASIC current and historical company extract.
45)Employment contract dated 9 March 2020 between applicant and nominee including position description and salary of $53,000 per annum.
46)Further copy of the seek.com advertisement.
47)Tax return and financial report for financial year 2017.
48)Business activity statement Q3, Q4 - 2018; Q1, Q2 - 2019.
49)Selection of store manager advertisements.
Documents including the following were provided after the hearing:
50)Screenshots of conversations between the nominee and other staff members regarding mobile phone purchases and sales.
51)Post hearing submission dated 6 July 2020 from the registered migration agent including:
5.19(4)(h)(ii)(C) the position cannot be filled by an Australian citizen or an Australian
permanent resident who is living in the same local area as that place.
It is advised by the Member that the job recruitment advertisement showing the position is in a beaty [sic] salon shop. The Member raise a concern whether the applicant satisfies 5.19(4)(h)(ii)(C).
It is a subjective test in determining whether the position can be filled by any candidate who is an Australian citizen or an Australian permanent resident living in the same local area. The applicant is entitled to make a decision at his discretion.
It is submitted that the applicant had opened the job opportunity to all local residents. The business advertised the position on Seek.com for 4 weeks.
The applicant did indicate this position is a Retail Manager. The attention to details is an essential attitude to the position of Retail Manager. A reasonable candidate would be able to identify the details of the position and the employer by phone or publicly available information. The typo neither disadvantaged any local Australian citizen or permanent resident to apply this position, nor impacted the fairness of the recruitment practice.
According to below census data from the Australian Bureau of Statistics, there is little population had the relevant industrial experience in consumer electronics retail in the area of Nerang, Queensland.
This is the main reason attributed to the shortage of experienced personnel. The outcome of the recruitment practice is consistent with the statistics of the same local area.
The recruitment practice undertaken by the nominator is fair, equal and non-discriminated to any particular extent. Meanwhile, there is no adverse information indicating the recruitment practice against any of the Australian workplace, equal opportunity and non-discrimination laws. Therefore, it is apparently that the applicant satisfies 5.19(4)(h)(ii)(C).
52)List of stock on hand.
53)Selection of advertisements for phones on Gumtree.
54)Company tax return for 2019 showing total income $735,413, total expenses $690,510 for a profit before tax of $44,903.
55)Photo of reports nominee worked on with bookkeepers.
56)Business activity statement Q4 - 2018 and PAYG withholding report.
57)Profit and loss from April to June 2019 showing before tax profit of $8003.
58)Screenshot of conversations between the nominee and bookkeeper.
59)Store manager job guidance including tasks and responsibilities dated 1 February 2017 and signed by applicant and nominee.
60)Photos of the interior of the mobile phone shop.
61)Financial statement to 30 June 2019.
62)PAYG payment summary for the nominee from 1 July 2018 to 30 June 2019.
63)Appointment of new migration agent Mr Feng.
64)Workplace health and safety compliance reports for 2017, 2018, 2019 and March to June 2020 signed by the nominee.
Adjournments and extensions of time
On 9 March 2020 the applicant requested a 14-day extension of time to respond to an invitation to provide further documents. Tribunal granted this extension of time to 24 March 2020.
During the hearing the applicant requested a brief adjournment which was granted.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained to the applicant that the Tribunal may put information to him, under s.359AA of the Act that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: he could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time he wished and he could seek advice from his registered migration agent; he could make a written submission within 14 days or an extended period of time if he requested an extension; or he could respond in the hearing. If he responded in the hearing, it would not prevent him from making a written submission within 14 days or a longer period if he requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument and the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant can choose to meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii) and has chosen to meet the latter.
Regulation r.5.19(4)(h)(ii)(C) provides as follows:
(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
The Tribunal asked the applicant in the hearing about the recruitment summary and he confirmed that there was one advertisement placed on seek.com and that there were 15 applicants for the position but none of them had the experience and/or qualifications that were required for the position. The nominee was unique as not everyone knows how to fix a mobile phone; he had good knowledge of the business; knew Mandarin and could communicate with the suppliers and had done an accounting course and had sufficient knowledge of bookkeeping. He was tremendous as he travelled every day from Brisbane to attend at the Nerang shop.

The applicant sought to provide evidence of meeting the above regulation by means of advertising the position. The Tribunal noted that the position was advertised online with the following information: Seek advertisement for retail manager dated 11 December 2016, location Gold Coast, salary $45,000 to $59,999, work type full-time with classification-retail and consumer products, management-store and reads as follows:
‘Retail manager needed for our Beauty salon store located in Nerang, Gold Coast.’ (Emphasis added).
The Tribunal put to the applicant under s.359AA of the Act that since the only advertisement for the position had been for a ‘beauty salon store’ rather than a mobile phone store, that this would limit the number of Australian citizens or permanent residents with mobile phone experience or appropriate qualifications who were living in the same local area as Nerang applying for the position as they would have believed that it was related to beauty salon work. If the Tribunal relied on this information, it may find that the applicant did not satisfy r.5.19(4)(h)(ii)(C).
The Tribunal invited the applicant to respond to this concern and he requested a 10-minute adjournment which was granted.
When the hearing recommenced, the applicant said he had made a mistake.
He also said that he had advertised the position on Gumtree for 14 days and the correct information had been provided with that advertisement namely that the position was in a mobile phone store. The Tribunal has carefully examined the documents provided and noted that the only Gumtree advertisements are for mobile phones not for vacant positions in the applicant’s business. No documents have been provided following the hearing that would provide evidence of an advertisement for a vacant position having been placed on Gumtree. As such, the Tribunal places little weight on this claim that the position was advertised on Gumtree but even if it were placed on Gumtree it is the seek.com advertisement that was used as the basis for the recruitment summary to satisfy the regional certifying body such that could give advice to the Minister to satisfy r.5.19(4)9h)(ii)(F). This is clear from the CCIQ Assessment Summary attached to the regional certifying body form 1404 which states “Can’t be filled locally: recruitment efforts: seek 111216>> 15 applicants. Invoice and listing. Letter says none suitable.”
It is clear from the receipt for $297 from Seek; the copy of the online advertisement and the screenshot showing 15 candidates that the seek.com advertisement was placed; ran for the time indicated and that 15 candidates responded to the advertisement.
The Tribunal’s concerns go beyond the fact that the position was misleading and advertised as being in a beauty salon store.
The Tribunal is concerned about the evidence of the recruitment summary; the applicant’s statements in the hearing and the letter of the 21 July 2017 that state;
We advertised this position on Seek for four weeks and received 15 job applications.We carefully reviewed all job applications. The nominee, Zongmin YAN, saw our online advertisement and dropped his resume in our store. Considering the nature of the business and the job duties of the nominated position, we found the nominee, Zongmin YAN, is the most suitable candidate. However, he does not have valid work permission to commence this permanent employment.
We are convinced by his efforts and sincerity for this job through phone interview and
interview in person. If Zongmin is an Australian permanent resident, we will absolute
to employ him to commence this employment. Considering the nature and size of the
business, a suitable experienced personnel from the local labor market is our first
option. However, when the position is not able to be filled locally, we have no
alternative but to hire an experienced overseas personnel to assist with the
development of the business.
The Tribunal considered the recruitment summary which shows 15 candidates and all listed as unsuitable except the nominee. Two were interviewed according to the recruitment summary.
Against the remaining 13 candidates who were not interviewed are comments such as “candidate does not demonstrate relevant knowledge in relation to mobile accessories”; “no relevant work experience or qualification” or “candidate demonstrate [sic] low interest in mobile retailing industry”. The only way the director could ascertain the mobile phone experience or relevant knowledge of these candidates would be to review their résumé; speak to them on the phone or contact them via email. However, these candidates were responding to a position advertised for a beauty salon and it is reasonable that their résumés and experience would reflect beauty salon work and or beauty salon qualifications. It is noted that only three candidates did not provide résumés. Had the director reviewed their résumés or contacted them, he would have found references to beauty salon work or qualifications and realised the advertisement was misleading.
Even more concerning is the assessment of candidate number three, who was listed as an Australian citizen and according to the recruitment summary, interviewed along with the nominee. The summary lists under the suitability assessment the following: “candidate does not demonstrate relevant knowledge in relation to mobile accessories”. It is implausible that the applicant could have interviewed candidate number three and not become aware that the candidate was under the impression the position was in a beauty salon. The Tribunal considers that the applicant did not review the résumés or information the applicants provided and did not interview candidate number three because if he had; beauty salon work or experience would have been raised by at least some of the candidates and almost certainly by candidate three.
The Tribunal is left with the conclusion that the recruitment summary is false and that the applicant had no intention of considering Australian citizens or permanent residents for the position since he ignored their résumés; failed to contact them; failed to interview them and rather went through the advertising and recruitment process simply to provide a migration outcome for the nominee.
The Tribunal must consider the submission dated 6 July 2020 by the registered migration agent who claims that “it is a subjective test in determining whether the position can be filled by any candidate who is an Australian citizen or an Australian permanent resident living in the same local area. The applicant is entitled to make a decision at his discretion”.
The Tribunal does not accept this argument since it is a legislative requirement that the applicant ensure that the position cannot be filled by an Australian citizen or an Australian permanent resident who was living in the same local area as Nerang. It is neither a subjective test nor is it at the applicant’s discretion. The applicant was aware of his legislative responsibilities to both the Department and the regional certifying body to satisfy r.5.19(4)(h)(ii)(F) because he did place the seek.com advertisement albeit in a misleading fashion.
The agent states that the job opportunity was open to all local residents and the advertisement ran for four weeks. It may have run for four weeks but the misleading information that the business was a beauty salon would have deterred Australian citizens or Australian permanent residents who had the necessary experience and qualifications as a retail manager for a mobile phone shop. The job opportunity was not open to all local residents but only to those who believed they had the experience and qualifications as a retail manager for a beauty salon store, a position which did not exist.
The agent states: “A reasonable candidate would be able to identify the details of the position and the employer by phone or publicly available information. The typo neither disadvantaged any local Australian citizen or permanent resident to apply this position, nor impacted the fairness of the recruitment practice”. The Tribunal has carefully examined the advertisement and can find no identifiers as to the employer or the position within the text of the advertisement. Moreover, the key duties and responsibilities and skills and experience listed for the position are so general in nature that they could equally apply to a beauty salon store; mobile phone store or any other retail store. The Tribunal does not accept this argument because a generic description of the key duties, responsibilities, skills and experience would cause a potential applicant to rely even more on the one specific item of information in the advertisement namely that the position is a retail manager for a beauty salon store.
The migration agent stated in the hearing “Address the advertisement, error in the advertisement for the nominating position. It is the nature of the beauty salon and the nature of the retail phone shop, having the same nature of retail store. It was the attitude and management of (the nominee). It is a new industry and (the applicant) had taken consideration of all candidates and the other candidates did not demonstrate relevant skills and experience”. This argument is implausible as no reasonable person would read a job vacancy for a ‘beauty salon store’ and deduce that it was really a vacancy for a mobile phone store. Moreover, the Tribunal finds that the registered migration agent provided false information because the careful analysis of the evidence shows that the applicant did not give “consideration of all candidates”, in fact he gave no consideration to any candidate except the nominee and he did not find the “other candidates not demonstrate relevant skills and experience’ because he did not review their resumes; did not speak to them on the phone; did not email them and did not interview them.
This is egregious behaviour on the part of the registered migration agent and does not satisfy the Code of Conduct for registered migration agents. As such, the Tribunal is referring Mr Yuxin Fu MARN: 1465212 of Austin Migration, Sunnybank QLD 4109 to the Office of the Migration Agents Registration Authority OMARA for providing false oral evidence in material particular to a visa application.
Lastly the agent submits that it would have made no difference since there is a shortage of industrial skills in consumer electronics retail in Nerang and presented some graphs showing that there is a preponderance of skills in sectors such as aged care and health in Nerang. Be that as it may, the agent misses the point that this is the reason that the advertisement and recruitment process is required to test the market and give Australian citizens and permanent residents in Nerang the opportunity to fill the vacant position for a retail manager in a mobile phone shop. The Tribunal does not accept the agent’s submission for the reasons given above.
There is some case law on whether the wording of an advertisement can deter applicants from applying for a position and that a properly worded advertisement would attract more applicants who were suitably qualified and who were Australian citizens or permanent residents. In Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015) the advertisement stipulated ‘Asian language highly preferred’ rather than ‘beauty salon store” which is the case here. Nonetheless the Tribunal notes that there are significant similarities and Judge Brown at [108], [109] and [115] found as follows:
In this case, it is asserted that there was no evidence to support the Tribunal’s conclusion. I do not agree that this is the case. The major piece of evidence before the Tribunal was the text of the advertisement itself, which contained the job criterion “Asian language highly preferred”.
Necessarily, in my view, a possible and logical conclusion to be drawn from a plain reading of the advertisement was that a number of applicants would be deterred from applying for the position because they had no Asian language skills…
Mr Albert contends that the evidence available to the Tribunal indicates that a number of applicants did in fact apply and were found wanting. This is the case, but this factor alone does not negate the logical possibility that an advertisement, without the specification, would have attracted more applicants, who were suitably qualified and who were Australian citizens or permanent residents than applied to the advertisement in question, which in effect was the finding of fact made by the Tribunal.
The applicant did not seek or request that their application be considered under r.5.19(4)(h)(i), however, for completeness the Tribunal will consider it against this regulation.
For nominations made before 18 March 2018, r.5.19(4)(h) is expressed as alternatives. However, a nominator would only be eligible to satisfy one or the other, depending on the fee paid at the time of application lodgement. This is because r.5.19(2) requires that an application for approval of a nomination must be accompanied by the fee mentioned in r.5.37 and different fees are prescribed depending on which limb of r.5.19(4)(h) a nominator is seeking to satisfy. For an application seeking to meet r.5.19(4)(h)(ii) (i.e. regional), there is no fee payable (r.5.37(3)). Therefore, if a nominator now seeks to satisfy r.5.19(4)(h)(i), they would not be able to meet r.5.19(2)(b).
The Tribunal finds the applicant has not paid the fee applicable to an application under r.5.19(4)(h)(i) and therefore does not meet r.5.19(4)(h)(i).
The Tribunal finds that the applicant did not satisfy the requirement that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as Nerang because he placed a misleading stipulation in the advertisement that limited the number of Australian citizens or Australian permanent residents applying for the position. The position may or may not have been filled by an Australian citizen or permanent resident who is living in the same local area as Nerang had the advertisement not had the stipulation “beauty salon store”. However, the applicant is unable to definitely satisfy the requirement that it “cannot be filled” because he did not test the labour market for the position of retail manager in a mobile phone store. As such, the requirement in r.5.19(4)(h)(ii)(C) that the position “cannot be filled by an Australian citizen or an Australian resident who was living in the same local area” as Nerang is not met.
Accordingly, the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
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.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)    directly operates the business; and
(c)for a nominator whose business activities include activities relating 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; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)    the terms and conditions of the employee’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)     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
(g)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; and
(h)either:
(i)     both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)    all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2020] AATA 6156

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