Access Seminars Australia Pty Ltd (Migration)

Access Seminars Australia Pty Ltd (Migration) [2023] AATA 124 (9 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Access Seminars Australia Pty Ltd
REPRESENTATIVE:  Mrs Maree Elliott (MARN: 9902416)
CASE NUMBER:  1916101
HOME AFFAIRS REFERENCE(S):          BCC2018/418472
MEMBER:De-Anne Kelly
DATE:9 January 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 January 2023 at 3:43pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Events Manager – genuine need for the employment – position could be conducted from any location – actively and lawfully operating a business in Australia – financial capacity to employ the nominee for at least two years – terms and conditions of employment no less favourable – tasks of the position – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37
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 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 25 January 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
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 reg 5.19(4)(h)(ii)(B) of the Regulations because the applicant failed to demonstrate a a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control since in part, it seemed the position could be conducted from any location in the world and the nominee travelled a good deal.
The applicant appeared before the Tribunal on 8 December 2022 to give evidence and present arguments.
The applicant was represented in relation to the review very professionally by Ms Maree Elliott MARN: 9902416.
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 requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 25 January 2018, the applicant lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Events Manager on $143,000 per annum to be employed at Peregian Beach Qld 4573 in favour of Mr Barend Jacobus JOUBERT.
Ms Simone Milasas, an impressive and forthright person and the director gave an overview of the company and the fact that they originated 20 years ago in the USA and market and promote Access Consciousness with seminars all around the world. Ms Milasis owns a percentage of the company and also in USA and Ireland. The theme is empowerment, self-empowerment and getting out of debt. There are books on the movement and thousands of practitioners worldwide in the 176 countries.
The Tribunal noted that the business was very profitable in previous years but there were no contemporaneous financial statements and this was drawn to the attention of the applicant who provided further evidence.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 25 January 2018 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Barend Jacobus JOUBERT was identified in the nomination application, and this indicates there is a need for the position.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
It is noted that BAS statements from FY 2020 to September 2022 indicate that the business is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence that the business labour hires.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Financial statements provided show a business with increasing and strong revenue and excellent profit as seen below.

Year 2022 2021 2020

Sales    2,959,268      1,753,082 2,494,279

Expenses    2,854,866      1,593,457 2,577,139

Profit     104,402      159,625 -    82,860

The latest employment contract 25 January 2018 does not expressly exclude the possibility of the period of employment being extended beyond two years.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(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 nominee is paid $143,000 per annum while Payscale has a range from $53,000 to $89,000 for such a position which indicates the position is no less favourable than the conditions that would be provided to an Australian citizen or Australian permanent resident
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the owner at the hearing.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Peregian Beach Qld 4573. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. It is noted that the applicant states the nominee has been working in the position for the past five years.
This is the reason the delegate refused the application. It is acknowledged that the business could be established anywhere in the world however a business needs a physical presence somewhere and there is no reason that it would not be in Australia in Peregian Beach. Having said that the business has secured premises at Peregian Beach and the nature of their seminars suits an attractive beach location. They also have warehouse leased nearby. The business has 160 employees worldwide and 20 based in Australia.
The director stated that Mr Joubert is in sales and with live events he has to find the venue and market the event on social media. People fly in from all over the world and he has to look after visa and groundwork and venue and the live streaming for 3 or 5 days of the seminar. The nominee makes sure that participants are cared for and although they arrange their own travel, he is responsible for ensuring that there are hotel options, transport and venues.
The nominee has been working there for several years and the director states that he is essential to the business. This is one of the new event-based businesses which are so important to regional economies.
From the evidence given by the director as above there is a genuine need to employ the nominated position.
The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The position was advertised from 25 March 2017 – 10 April 2017 and 1 Feb 2018 – 16 March 2018 with 10 applicants however none had the necessary qualifications and experience to fill the role.
The Tribunal accepted the director’s evidence that the position could not be filled by an Australian citizen or Australian permanent resident.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The Tribunal has carefully considered the evidence and the Position Description provided and finally determined that the tasks of the position generally correspond to the tasks of a position specified by the Minister in an instrument being the position of Events Manager.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee provided evidence that he has several years’ experience as an Events Manager. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Peregian Beach Qld 4573 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
The Chamber of Commerce and Industry Queensland (CCIQ) as the regional certifying body RCB specified in the Ministerial instrument on 25 June 2019. certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).
Accordingly, r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are 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 (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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2023] AATA 124

9 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Standing

Remedies

Year	2022	2021	2020
Sales	2,959,268	1,753,082	2,494,279
Expenses	2,854,866	1,593,457	2,577,139
Profit	104,402	159,625	- 82,860