Asian Plaza Pty Ltd (Migration)

Asian Plaza Pty Ltd (Migration) [2022] AATA 4516 (17 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Asian Plaza Pty Ltd
REPRESENTATIVE:  Ms Dingxin Ke (MARN: 1791597)
CASE NUMBER:  1930023
HOME AFFAIRS REFERENCE(S):          BCC2019/2309702
MEMBER:Wan Shum
DATE:17 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 October 2022 at 4:34pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Café or Restaurant Manager – future employment – financial capacity – full-time basis for at least 2 years – contract of employment – Restaurant Industry Award 2010 – Level 5 food and beverage supervisor – nominator’s sales and turnover – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r, 5.19
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 October 2019 to reject an application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
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 application for approval of a nomination was made by Asian Plaza Pty Ltd (the nominator) on 29 April 2019 for the position and occupation of Café or Restaurant Manager under the Temporary Residence Transition stream. Ms Inhui Lee was identified as the person the nominator wished to employ for the position. Ms Lee lodged a Subclass 186 visa application in respect of this nomination.
The delegate refused the application on the basis that the nomination did not satisfy reg 5.19(5)(l) of the Regulations. The delegate formed the view that the application did not demonstrate that the nominating business has the financial capacity to provide full time paid employment and superannuation contribution to the nominee for a minimum period of 2 years as required.
Ms Lee’s visa was refused as a consequence.
The nominator and Ms Lee have sought review of these decisions. Both parties are represented in relation to the review by the same registered migration agent.
Mr Lawrence Kim and Mr Sungjae Kim appeared on behalf of the nominator at a hearing on 25 August 2022 by videoconference using Microsoft Teams to give evidence and present arguments in support of this application. Ms Lee, the nominee, also gave evidence.
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 reg 5.19(5). For the nomination to be approved, all the requirements must be met.
The nominator operates restaurant businesses in Australia, with two venues located in Sydney, although only one is currently open for business while the other shop location has been closed for several months and the lease is under negotiation. The Tribunal was provided with evidence that the nominator has a current lease agreement for a premises located at Royal North Shore Hospital, with the base rate rent at $11,411 although the accountant advised that the nominator has been granted a 50% concession from the landlord during COVID-19, which makes the rent reduced to $5,705. This reduced rate will remain the same for the next two years. In terms of the restaurant which was previously located at Myer CBD, the base rent was $350,000 per year and was reduced by 50% by the shopping centre during COVID-19. The accountant confirmed that the lease was terminated in February 2022 and the restaurant was closed since then. However, a new 5-year lease of $200,000 per year is currently under negotiation and the restaurant is planning to reopen in mid-2023 once the negotiation is finished.
According to ASIC records, the nominator was registered on 19 January 2009 and the business is registered under ABN 84127153548 with the registered business name of Hokka Hokka. The current Directors are Mr Lawrence Kim and Ms Sheena Kim. It was explained during the hearing that Mr Sungjae Kim, who appears on the organisation chart as a ‘consultant’, had come up with the concept for the Asian restaurant business in 1987. His son is now the Director and operating manager, while he is in charge of planning and managing the licensed shops. Mr Sungjae Kim explained that the nominator had entered into a number of licensed agreements with other companies allowing businesses to trade using the name, recipes and menus of Hokka Hokka. As part of the agreements, a copy of which was provided to the Tribunal, the nominator is the licensor and has agreed to grant the right to operate the “distinctive business formats and systems developed by the Licensor for the use of the Brand” which is defined as all registered and unregistered rights in the name ‘Hokka Hokka’. There are currently restaurants in Queensland, Canberra and other locations in Sydney including at Sydney airport. Previously there were also restaurants in Perth and North Queensland but these were closed, with Mr Sungjae Lim citing that it was due to the impact of COVID-19 on those business operations. He is involved in finding possible sites for operating other Hokka Hokka restaurants and dealing with licensees.
The application form for the nomination under the Temporary Residence Transition stream was completed with the occupation ‘Cafe or Restaurant Manager’ as the position to be filled, and ANZSCO code 141111.
The nominated person’s details were that of the nominee and the information before the Tribunal is that she held a subclass 457 visa at the time of application which had been granted on 17 February 2017. The position nominated for the subclass 457 visa was for a Cafe or Restaurant Manager – ANZSCO: 141111.
When the application was made, it was indicated that the business employed seven Australian employees and two foreign employees. The organisation chart provided to the Tribunal reflects that the position of restaurant manager being filled by the nominee and appears to show that the position manages restaurants in two locations, Myer CBD and Royal North Shore Hospital. However, as outlined above, only one location is currently operating, being the Royal North Shore Hospital venue, which is newly opened. Mr Sungjae Kim advised that the nominee has been employed by them for over 6 years and is currently in charge of the restaurant at the Royal North Shore Hospital. It is a standalone restaurant and has seating capacity of 70 to 75 persons. The restaurant is currently open 5 days per week and not on weekends yet, which was said to be due to the impact of COVID-19. Mr Sungjae Kim gave evidence that he also sends the nominee out to new licensed restaurants to help with training the staff of the licensees as she knows the business.
In relation to the financial records provided on review, the Tribunal enquired about the losses in FY2021 although noted that capital expenditure was significantly higher than previously. The Tribunal further noted that the nominee’s salary, appeared to have been less than $55,000 in the past two years and Mr Sungjae Kim acknowledged that this had come to his attention and believed that it was due to a reduction in hours due to the government lockdown that was in place because of the COVID-19 pandemic.
Following the hearing, the Tribunal was provided with a letter from the accountant, JD Advisory Group, who confirmed that the nominee’s working hours were reduced during the COVID-19 concession period due to COVID-19 restrictions and lockdown rules, but her hourly rate remains the same for these periods. The accountants further confirmed that the nominator’s liabilities had increased during FY2021 due to the EM Shopfitters development of the Royal North Shore Hospital location which amounted to $435,000, which was capitalised and included in the Non-Current Asset – Property Plant and Equipment. The Tribunal was provided with a copy of the invoice. The accountants further explained that the loss of $66,050 was after the depreciation expense of $190,770 and that before incorporating non-cash expenses on the balance sheet, the company had about $124,720 profit in FY2021.
The accountants further confirmed that the nominator has increased the nominee’s annual salary from 1 July 2022 to $66,000 and advised that the increased wages were not calculated in previous payslips and that the differences in earnings had been included as Back Payment in the most recent payslip. The accountants gave an opinion that the nominator is operating profitably without ongoing concerns and it has the ability to service future debt and support its employees.
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, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.
The Tribunal finds on the basis of the information held by the Department that the application was made on 29 April 2019 in accordance with approved form 1395 (Internet) as required and was accompanied by the fee mentioned in reg 5.37. The application identified:
·the position of Cafe or Restaurant Manager;
·the occupation of Cafe or Restaurant Manager in relation to the position;
·Ms Lee in relation to the position; and
·Subclass 186 and Temporary Residence Transition stream to which the nomination relates.
The nominator’s response on the form to the question seeking certification that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) was ‘yes’.
The nomination training contribution charge was paid, and the nomination application included the annual turnover for the nomination: regs 5.19(2)(fa), (fb).
Given the above, 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.
There is no evidence before the Tribunal of adverse information known to Immigratoin in
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.
In this instance, the relevant State or Territory is New South Wales and the relevant occupation is Cafe or Restaurant Manager. Having regard to the ANZSCO description and other information before the Tribunal, there is nothing to indicate that licencing/registration or membership requirements of a professional body are required to perform the tasks for the nominated occupation.
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.
Mr Sungjae Kim advised that there had been no workplace relations issues for the nominator and there is information before the Tribunal to indicate that the nominator has had any such issues. The Tribunal does not consider there is information before it that the applicant has not had 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.
Given the above, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a Subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.
According to Departmental records, Ms Lee has held two Subclass 457 visas, the last of which was granted on 17 February 2017 and valid until 17 February 2021. The information before the Tribunal is that the visa was granted on the basis of sponsorship by a standard business sponsor and the position nominated for the subclass 457 visa was for a Cafe or Restaurant Manager – ANZSCO: 141111. This means that the visa held by the nominee on 29 April 2019 is a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Café or Restaurant Manager.
Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).
Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument in force at the time the application was made was IMMI 19/049.
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
The occupation of Café or Restaurant Manager is listed in ANZSCO with the 6-digit code of 141111 and the information before the Tribunal is that the occupation has the same 4-digit occupation code as the occupation in respect of which the most recent 457 visa was granted.
The occupation of Café or Restaurant Manager 141111 is not listed in the instrument that was in force at the time the application was made (IMMI 19/049) and therefore the nominee must be a specified person as, pursuant to s 8 of IMMI 18/052, a specified person is exempt from the operation of reg 5.19(5)(c) of the Regulations. A ‘specified person’ is defined in s.4 of the instrument as ‘a person specified for the purposes of subparagraph 5.19(5)(a)(iii) of the Regulations (see section 6).’ Section 6 provides that: ‘A person is specified for the purposes of that subparagraph if, on 18 April 2017, the person: (a) held a Subclass 457 (Temporary Work (Skilled)) visa; or (b) was an applicant for a Subclass 457 (Temporary Work (Skilled)) visa that was subsequently granted.’ The nominee held a Subclass 457 visa on 18 April 2017 and is therefore a specified person. Given this, the nominee is exempted from the operation of reg 5.19(5)(c).
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: r.5.19(5)(d).
In considering whether there is any such information, the Tribunal has had regard to the tasks listed for the occupation of under ANZSCO. During the hearing, the Tribunal asked the nominee about her daily duties and responsibilities. The Tribunal considers that the evidence supports a finding that her tasks are consistent with the information in ANZSCO for that occupation and there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO.

Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:
·a Subclass 457 visa in the Standard Business Sponsorship stream, or
·a Subclass 482 visa in the Medium-term stream, or
·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.
Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.
In this case, the nomination application was made on 29 April 2019. The relevant instrument made under reg 5.19(6) is LIN 22/038. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument, being a total period of at least 2 years (not including any periods of unpaid leave) is determined, instead of a total period of at least 3 years (not including any periods of unpaid leave) mentioned in those provisions.
The evidence before the Tribunal is that the nominee, as the identified person, was employed as a Cafe or Restaurant Manager which is not a specified occupation for reg 5.19(5)(g). The Tribunal accepts on the evidence that she was working as a Cafe or Restaurant Manager throughout the period prior to the nomination application on a full-time basis. The Tribunal therefore finds that the nominee was employed for a total of at least 2 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
The information before the Tribunal is that the nominator was the last standard business sponsor to identify the identified person in an approved reg 2.72 nomination. Based on financial statements, BAS and tax returns, as well as oral evidence, the Tribunal finds that the nominator is actively and lawfully operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) 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(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13): reg 5.19(7). However, the occupation of Cafe or Restaurant Manager is not one of the occupations specified so the Tribunal has considered whether the need for the nominee to be employed in the position of Cafe or Restaurant Manager is genuine. The evidence is that the nominator currently directly operates one restaurant and employs 5 people work in front-of-house or in the kitchen. The nominee is the only restaurant manager employed by the nominator. The Tribunal was provided with payroll information and tax records which confirm that she has been employed on a full-time basis, other than periods of forced lockdowns. Mr Sungjae Kim and the nominee gave consistent evidence of her duties and responsibilities which include hiring and training of staff; liaising between the kitchen and floor; purchasing and ordering stock; serving customers and dealing with complaints; as well as supervising preparation of sushi and bibimbap dishes in the kitchen. The nominee advised that she spent about 30 minutes each morning on the latter. She added that she proposed menu changes based on customer feedback. They both confirmed that her role has not changed since her employment began.
On the information before it, the Tribunal finds that the application identified a need for the nominee to be employed in the position under the nominator’s direct control. Having regard to the evidence presented, which includes hours of operation, the turnover of the business and the nature of the business, the Tribunal is satisfied that the nominator has a genuine need to employ a full-time Cafe or Restaurant Manager.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13): reg 5.19(7).
Secondly, reg 5.19(5)(m) 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(5)(n) 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 occupation of Cafe or Restaurant Manager is not exempt from reg 5.19(5)(l), which means that the nominee must be employed full-time for at least 2 years.
Mr Sungjae Kim gave evidence that the nominee is a very valuable member of the team, and even her husband is employed at the restaurant in the kitchen. On review, the Tribunal was provided with an updated contract of employment in respect of the nominee for the position of full-time Cafe or Restaurant Manager, dated 1 July 2022. The first dated 24 August 2016 is signed by Mr Sungjae Kim as the Director and the nominee, while the second contract is signed by the same parties, but the former in the capacity of a Manager. The salary has remained the same at $55,000; although the accountant has advised that the salary increased on 1 July 2022 to $66,000 and that back payments were made due to the shortfall. The most recent contract reflects that the terms and conditions of the nominee’s employment do not expressly exclude the possibility of extending the period of employment.
The annual market salary rate for the occupation has been calculated by reference to the Restaurant Industry Award 2010 that applies to the business. The nominator confirms that the relevant classification for the nominated position of Restaurant Manager is Level 5 – food and beverage supervisor. The base hourly rate at the time of the response for a full-time employee of this classification was $25.16 with penalty rates applying on weekends and public holidays. The nominator advises that the nominated position is required to work at least one weekend day and all public holidays (except New Year’s day and Christmas day) such that the annual market salary rate would not be less than $53,842.40 (1006.4x46+1258x6). The Tribunal notes that the Award rates have increased as of 1 October 2022[1] such that the minimum weekly wage for Level 5 is now $999.90 and the hourly rate is now $26.31. This is approximately a 4.6% increase, such that the annual market salary rate as calculated by the nominator would now be $56,319.
[1] (accessed on 14 October 2022)
The Tribunal further notes that under the Award, employees engaged under an annualised salary must be paid a loading of at least 25% in line with clause 28.1(a) of the Award. This would be $64,993.50 under the current rates. The accountant has advised that the nominator has increased the nominee’s salary to $66,000 and is able to meet this obligation.
Having regard to this, as well as the nominator’s sales and turnover, the Tribunal accepts that the business has the capacity to employ the nominee for at least 2 years and pay her at least the annual market salary rate. On the information before it, the Tribunal considers that the nominee will be employed for at least 2 years on a full-time basis and that regs 5.19(5)(l), (m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(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 the instrument IMMI 18/033. 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 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 the instrument IMMI 18/033 (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).
According to IMMI 18/033, the method for determining the annual market salary rate for an equivalent nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, where there is not an Australian worker performing equivalent work and there is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, is the annual earnings of an Australian worker contained in those instruments. The Restaurant Industry Award (the Award) is relevant in this case.
The annual market salary rate as calculated by the nominator factoring in the recent increase in wages under the Award is $56,319. This rate is not less than TSMIT, which is currently $53,900. The nominee’s annual earnings will be $66,000 such that it is not less than the annual market salary rate for the occupation and not less than TSMIT. Finally, the Tribunal is not aware of any information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation. Given these findings, the Tribunal finds that the requirements of reg 2.72(15) are met and therefore that reg 5.19(5)(o) are met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
Regulation 5.19(5)(p) 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 before the Tribunal that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. The Tribunal is satisfied that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n).
On the evidence presented, the Tribunal is satisfied that reg 5.19(5)(q) is met.
Conclusion
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.
Wan Shum
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.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)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;
(n)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;
(o)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;
(p)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;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2022] AATA 4516

17 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies