ASTECH GROUP (AUST)PTY LTD (Migration)

[2023] AATA 691

ASTECH GROUP (AUST)PTY LTD (Migration) [2023] AATA 691 (9 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ASTECH GROUP (AUST)PTY LTD

REPRESENTATIVE:  Mr Joseph Yao (MARN: 0743862)

CASE NUMBER:  1917517

HOME AFFAIRS REFERENCE(S):          BCC2017/3153513

MEMBER:De-Anne Kelly

DATE:9 March 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 March 2023 at 4:52pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – position associated with the nominated occupation is genuine – position cannot be filled locally – no adverse information–  position located in regional Australia – actively and lawfully operating a business in Australia – no less favourable terms and conditions of employment– genuine need for the nominator to employ a paid employee to work in the position – decision under review set aside 

LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 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).

2. The applicant applied for approval on 31 August 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the nominated occupation was not specified in an instrument in writing for the sub-subparagraph.

5. The applicant appeared before the Tribunal on 6 March 2023 to give evidence and present arguments.

6. The applicant was represented in relation to the review by Mr Joseph Yao MARN: 0743862.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

8. It was disappointing to see the agent provide documents on the Friday before the hearing on the following Monday, in contravention of the Presidents Direction to provide evidence at least 7 days prior to the hearing in order for the applicant to have their claims fairly assessed.

   Section 359AA of the Act

9. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, 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 two ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could then respond in the hearing or they could respond directly in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

10. It does not oblige the Tribunal to send a s.359(2) letter with a request for documents nor does it oblige the Tribunal to provide time post-hearing for the filing of documents.  It is clear from the Invitation to Attend Hearing that the applicant is expected to file relevant material at least seven (7) days prior to the hearing date. The Tribunal would permit an applicant to file documents after a hearing only where it is clear those documents could not be obtained prior to the hearing; where a new matter has been raised by the Tribunal that the applicant may not have reasonably been aware of or similar circumstances that would necessitate it to allow post hearing filing on the basis of procedural fairness or natural justice. The applicant did not put forward any matters that would enliven concerns regarding procedural fairness or natural justice. As such, the Tribunal did not allow the applicant with a formal opportunity to file post-hearing submissions or evidence.

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. On 31 August 2017 the applicant lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Office Manager on $55,000 per annum to be employed in Condobolin NSW 2877 in favour of Mr Sandeep Kumar.

14. Mr Trevor Bulloch an impressive and forthright man appeared for the applicant and gave an overview of their business which produces waste bins for the waste and recycling industry commencing production in 2009. They have contracts with Cleanaway and Veolia and a range of other customers. They employ 25 local people as welders and fabricators which makes them a significant employer in the town. They are growing the business by marketing mainly on their website and through social media. They have clients in the eastern states, SA and Tasmania.

    The application is compliant: reg 5.19(4)(a)

15. 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.

16. 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 31 August 2017 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’.

17. 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.

18. 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.

19. 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 Sandeep Kumar was identified in the nomination application, and this indicates there is a need for the position.

20. 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)

21. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

22. It is noted that financial statements from FY 2020 to FY 2022 indicate that the business is actively, lawfully and directly operating a business in Australia.

23. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

24. 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. 

25. There is no evidence that the business labour hires.

26. Accordingly, the requirement in reg 5.19(4)(c) is met.

    Term of employment of the visa holder: reg 5.19(4)(d)

27. 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. 

28. Financial statements provided show a successful business with increasing and strong revenue and excellent profit as seen below.

Year	2022	2021	2020
Income	8,925,003	7,080,250	5,581,742
Direct labour	1,579,743	1,406,745
Wages	186,016	195,238	195,883
Expenses	8,605,287	5,765,273	5,471,873
Profit	319,716	1,314,977	109,869

1. The latest employment contract 17 August 2017 does not expressly exclude the possibility of the period of employment being extended beyond two years.

2. Accordingly, the requirement in reg 5.19(4)(d) is met.

   No less favourable terms and conditions of employment: reg 5.19(4)(e)

3. 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.

4. The nominee is paid $69,385 per annum which is within the salary range 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

5. Accordingly, the requirements of reg 5.19(4)(e) are met.

   No adverse information known to Immigration: reg 5.19(4)(f)

6. 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.

7. 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. The director confirmed this at the hearing.

8. Accordingly, the requirements of r.5.19(4)(f) are met.

   Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

9. 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.

10. 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.

11. 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)

12. 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)

13. The Tribunal needs to determine if the position is in regional Australia. The business is located in Condobolin NSW 2877. 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.

14. Accordingly, r.5.19(4)(h)(ii)(A) is met.

    Genuine need for the position r.5.19(4)(h)(ii)(B).

15. 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.

16. The Tribunal was concerned that it appeared that the nominee had not commenced work until some years after the nomination was lodged. This was based on the following information.

17. The employer nomination was lodged on 31 August 2017. Form 80 shows the applicant working from July 2017 to the date of the signing of the from namely 22 August 2017 for Astech as the Office Manager however on the same form it shows him residing from April 2017 to 22 August 2017 in Bendigo Victoria 3550. Furthermore, on 19 January 2018 the nominee lodged a change of address form with the Department showing he was now residing at East Maitland Victoria 2323.

18. In the review application from for the nominee lodged on 31 July 2019 it shows him residing at Raymond Terrace NSW 2324 which is 582 KM from Condobolin or a 6-hour 31 minute trip by car.

19. From the employer nomination lodgement on 31 August 2017 to 31 July 2019 the nominee was residing at Raymond Terrace NSW 2324.

20. Mr Bulloch explained that they had another business at Newcastle NSW and the nominee had been working there hence the different addresses and this was accepted by the Tribunal.

21. Accordingly, r.5.19(4)(h)(ii)(B) is met.

    Cannot be filled. r.5.19(4)(h)(ii)(C)

22. 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.

23. A Receipt was provided for an advertisement in the Condobolin Argus& copies of advertisement 19 July 2017. Mr Bulloch advised that they were unsuccessful in attracting a suitable candidate other than the nominee

24. The Tribunal accepted the director’s evidence that the position could not be filled by an Australian citizen or Australian permanent resident.

25. Accordingly, r.5.19(4)(h)(ii)(C) is met.

    Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)

26. The Tribunal has carefully considered the evidence and the Position Description provided and put the following to the Director Mr Bulloch under s359AA of the Act.

27. The organisation chart shows the Managing Director – Trevor Bulloch and reporting to him the Office Manager, the Sales & Purchasing Manager (Martin F/T) and the Workshop Manager (Walter).  The Office Manager (the nominee) has the following reporting to him; Marketing Specialist (Sarah F/T), Graphic Design (Leonard F/T) & Finance Manager (Mark W F/T). Reporting to the Sales & Purchasing Manager is a Despatch employee (Michael F/T) and reporting to the Workshop Manager are the Welders and Fabricators.

28. It is noted among the work samples provided that there is one email from the nominee regarding a “wages receipt” which was forwarded to “accounts@ astechgroup.com.au”; a tracking link for a delivery from a supplier emailed to the nominee; A “Quote won/Loss ratio for the business; an Astech policy for receiving deposits prior to commencing work and the Sales Manager and accounts responsible for ensuring compliance ( there is no indication the nominee has developed this policy or is responsible for implementation), an email to the nominee from Office Works for some stationary and an email from the nominee sending a Video link for a meeting to a third party with CC to the Managing director, Sales and Purchasing, Warehouse Manager and Despatch.

29. These sample tasks comprise record keeping, report preparation, ordering stationary supplies. tracking deliveries and facilitating meetings and are not indicative of the higher-level managerial tasks of an Office Manager who manages other staff and accounts. These higher-level tasks are setting priorities and office service standards, allocating human resources, assigning work to and monitoring work performance of staff, managing records and account of the office, liaising with Professionals to coordinate office business and to facilitate resolution of problems and coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision.

30. The statement by the Managing Director 10 February 2023 describes the nominee’s tasks and responsibilities and states he has worked as an Office Manager since 28 August 2017.

    a.Oversee and support all administrative duties in the office and ensure that the office is operating smoothly.

    b.Manage office supplies inventory and place orders as necessary.

    c.Monitor and review work performance of staff.

    d.Manage and maintain records and accounts of the office.

    e.Monitor compliance with occupational health and safety regulations.

    f.Develop office policies and procedures, and ensure they are implemented appropriately.

    g.Booking Freight, ie TNT

    h.Maintain and comply with government legislation and procedures.

    i.Identify opportunities for process and office management improvements, and design and implement new systems.

    j.Provide other administrative support as necessary, including scheduling group meetings, maintaining calendars, and creating reports.

    k.Develop organizational procedures and systems for office personnel, including filing, invoicing, accounts payable, payroll and scheduling if required

    l.Order supplies and equipment as needed.

    m.Establish a team atmosphere through leadership and employee development.

    n.Receiving Off Goods and approving for Billing.

1. The Tribunal does not consider that task (a) “Oversee and support all administrative duties in the office and ensure that the office is operating smoothly” from the job description is actually undertaken by the nominated position because there are more full time senior staff in the office including the Managing Director who is also an owner of the business and heavily invested in the successful operation of the business, the  Marketing Specialist, the Finance Manager and the Sales & Purchasing Manager.

2. The Tribunal does not consider that tasks (c) “Monitor and review work performance of staff”, (k) “Develop organizational procedures and systems for office personnel, including filing, invoicing, accounts payable, payroll and scheduling if required” and (m) “Establish a team atmosphere through leadership and employee development” are undertaken by the nominated position because it does not consider the Marketing Specialist (Sarah F/T), the Graphic Designer (Leonard F/T) & the Finance Manager (Mark W F/T) report to the nominated position. Despite the organisation chart showing these staff reporting to the nominated position there is no mention of them, or their responsibilities being overseen in the Job Description. The other staff would not be reporting to Office Manager (the nominee) on $69,385 with the following reporting to him; Marketing Specialist (Sarah F/T) $ 68,777 Graphic Design (Leonard F/T) & Finance Manager (Mark W F/T) $70,000. There is no mention in the job description of responsibility for these positions or the requirement to have expertise in marketing, graphic design or financial Management and two of these positions earn more or similar and are managerial positions which it is unlikely would report to an Office Manager earning similar or less than them.

3. The Tribunal does not consider that task (d) “Manage and maintain records and accounts of the office” from the job description is actually undertaken by the nominated position because the sample work of a “wages receipt” was forwarded to the “accounts@ astechgroup.com.au to be actioned by the accounts or the Finance Manager and the work sample the Astech policy for receiving deposits prior to commencing work is implemented by the Sales Manager and accounts who are responsible for ensuring compliance. There is no indication the nominee has developed this policy or is responsible for implementation. It is simply implausible that an Office Manager would be responsible for the financial records and accounts when there is a full time Finance Manager, and it is equally implausible that the Finance Manager would report to the Office Manager.

4. The Tribunal does not consider that part of task (n) “Receiving Off (sic) Goods” from the job description is actually undertaken by the nominated position because receiving goods would be the responsibility of the Warehouse Manager. Responsible tio approve those documents.

5. The Tribunal does not consider that part of task (c) “Develop office policies and procedures, and ensure they are implemented appropriately” from the job description is actually undertaken by the nominated position because the other senior staff such as the managing director and the finance manager would have oversight and develop office policies and procedures and ensuring they are implemented appropriately. It is implausible that with such a large successful business where the owner is a director and works full time in the business that the development of office policies and procedures which involve quoting and invoicing would be left to a less senior staff member.

6. Removing the tasks that the Tribunal considers are not undertaken by the nominated position leaves the job description as below.

   ·     Manage office supplies inventory and place orders as necessary.

   ·     Monitor compliance with occupational health and safety regulations.

   ·     Booking Freight, ie TNT

   ·     Maintain and comply with government legislation and procedures.

   ·     Identify opportunities for process and office management improvements, and design and implement new systems.

   ·     Provide other administrative support as necessary, including scheduling group meetings, maintaining calendars, and creating reports.

   ·     Order supplies and equipment as needed.

   ·     Approving for Billing.

7. With the tasks left that are undertaken by the nominated position it seems that they most closely correspond to ANZSCO Bookkeeper 551211 Clerk as below although it is acknowledged that there are extraneous duties such as booking freight and scheduling meetings.

   5512 Bookkeepers

   Bookkeepers maintain and evaluate records of financial transactions in account books and computerised accounting systems.

   ​​​​In Australia:

   ·AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV or at least three years of relevant experience (ANZSCO Skill Level 3)

   Tasks Include:

   ·keeping financial records, and maintaining and balancing accounts using manual and computerised systems

   ·monitoring cash flow and lines of credit

   ·preparing and producing financial statements, budget and expenditure reports and analyses using account books, ledgers and accounting software packages

   ·preparing invoices, purchase orders and bank deposits

   ·reconciling accounts against monthly bank statements

   ·verifying recorded transactions and reporting irregularities to management

   ·may be required to prepare forms reporting business tax entitlements and obligations such as the amount of goods and services tax paid and collected

8. The director chose to respond in the hearing and said the structure of the business is such that their average order size is $40,000 so the paperwork and administrative tasks are fairly minimal. The Finance Manager works from Sydney and does accounts, payables and receivables. Although Mr Bulloch is a full time Managing Director, they have other business interests one of which is firewood equipment and firewood, and he also has a rural property so his time is split between those two businesses and he is not in the office full-time but some 2 – 3 days per week. The real role of the Nominee is to examine the KPI’s for the welding and fabrication team as this is the only way they can be certain they are meeting their targets. He prepares weekly reports on this and gives it to Mr Bulloch. The nominee does not really oversee the other staff but works closely with Mr Bulloch in scheduling meetings and preparing reports for him as well as the important role of KPI and production units which are analysed and reported to Mr Bulloch. The nominee develops these reports with the other managers and this key information is feedback for Mr Bulloch.

9. Mr Bulloch responded to the prospect of an affirm decision by saying this would place him ina difficult position as it is difficult to hire staff in this current economic climate and Mr Kumar has been loyal and hard working and has been with them for 6 years. Mr KImar indicated that his family and children were there and they like the regional area and he has a supportive e and good employer and personally does not want to leave. Mr Bulloch was very supportive of them during COVID.

10. It seems to the Tribunal that the position as described in the hearing was vital to enable Mr Bulloch to monitor the KPI’s of the entire business but that the tasks of the position correspond with those of a Personal Assistant ANZSCO 521111 as below. This position is a skills level 3 position and can be nominated under the Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream. It seems that the nomination should have been for a Personal Assistant but this does not mean the application should not be supported by the Tribunal.

    PERSONAL ASSISTANTS perform liaison, coordination and organisational tasks in support of Managers and Professionals.

    Indicative Skill Level:

    In Australia: AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3

    Tasks Include:

    oliaising with other staff on matters relating to the organisation's operations

    oresearching and preparing reports, briefing notes, memoranda, correspondence and other routine documents

    omaintaining confidential files and documents

    oattending meetings and acting as secretary as required

    omaintaining appointment diaries and making travel arrangements

    oprocessing incoming and outgoing mail, filing correspondence and maintaining records

    oscreening telephone calls and answering inquiries

    otaking and transcribing dictation of letters and other documents

    omay supervise other secretarial and clerical staff

11. The tasks to be performed in the position correspond to the tasks of an occupation Personal Assistant ANZSCO 521111 specified by the Minister in an instrument in writing for this sub-subparagraph IMMI 17/048.

12. Accordingly, r.5.19(4)(h)(ii)(D) is met.

    Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)

13. The nominee provided evidence that he has several years’ experience as a Personal Assistant and Diplomas of Management. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.

14. Accordingly, r.5.19(4)(h)(ii)(DA) is met.

    Business operated at that place. r.5.19(4)(h)(ii)(E)

15. The business of the nominator is located at Condobolin NSW 2877 and is in ‘that place’ that was specified in the employer nomination.

16. Accordingly, r.5.19(4)(h)(ii)(E) is met.

    Regional certifying body r.5.19(4)(h)(ii)(F)

17. Regional Development Australia as the regional certifying body RCB specified in the Ministerial instrument on 20 September 2017 and 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).

18. Accordingly, r.5.19(4)(h)(ii)(F) is met.

19. Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met.

20. 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

21. 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 an identified person, as  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).

    Case Number 1917517

    Documents including the following were included in the original application.

    2)Acknowledgment of nomination application 31 August 2017.

    3)Online application for employer nomination 31 August 2017.

    4)Office Manager job description which corresponds almost word for word to the ANZSCO 512111. Market salary analysis included.

    OFFICE MANAGER [ANZSCO 512111]
    PRIMARY OBJECTIVE

    Organise and control the functions and resources of offices such as office personnel and administration systems.

    SPECIFIC RESPONSIBILITIES

    1)    Plan and review of office services, and set priorities and office service standards

    2)    Allocate administration and sales human resources, space and equipment

    3)    Assign work to and monitor work performance of staff

    4)    Manage records and accounts of the office

    5)    Coordinate office business and facilitate resolution of problems

    6)    Ensure office equipment and supplies are maintained

    7)    Ensure compliance with occupational health and safety regulations

    8)    Ensure work complies with relevant government legislation, policies and procedures

    9)    Coordinate personnel activities such as hiring, promotions, performance management, payroll, training and supervision

    10)   Other tasks as required from time to time as directed

    5)Organisation chart showing Directors (Trevor Bulloch & Gary Bulloch); Managing Director (Trevor Bulloch & Gary Bulloch F/T); Sales & Marketing Manager (Gary Bulloch); Operations & Purchasing Team (Trevor Bulloch F/T); Office Manager (The nominee); Welding & Fabrication team; Warehouse Manager (Martin Bulloch F/T) and Finance/ Accounts (Emmeline Bulloch F/T).

    6)Contract of employment 17 August 2017 with stipulation, “The employee with commence employment with the Employer upon the grant of the R SMS visa as a permanent full-time employee”.  No job description was provided with this contract.

    7)Letter regarding RCB lodgement 31 August 2017.

    8)Bank receipt.

    9)Market salary analysis.

    10)ASIC and ABN registration.

    11)Letter of support from the Director 15 August 2017 stating that the position is needed to take pressure off the directors.

    12)Clerks – Private Sector Award.

    13)Financial statements FY 2017.

    14)RCB approval including Form 1404, 20 September 2017.

    15)Receipt for advertisement in Condobolin Argus& copies of advertisement 19 July 2017 stating.

    OFFICE MANAGER FULL TIME

    We are manufacturers of premium quality equipment for the waste and recycling industry. Our association with this industry over many years has enabled us to become one of the leading suppliers in Australia. We are currently seeking a full time Office Manager to join our team.
    The role requires a team player with strong administration and customer service skills. Accounts and sales experience will be an advantage.

    If you are interested in applying for this opportunity, please send your resume to [email protected]

    16)Letter from the agent 22 March 2018 to Department regarding the process for assessing applications.

    Documents including the following were provided following the review application.

    17)Nomination refusal notice 25 June 2019 including Notice of Decision.

    18)Hearing response generic form.

    19)VETASSESS assessment 26 November 2022 for nominee as Office Manager.

    20)Email from the agent asking if the hearing will be held as a joint hearing with the visa applicant.

    21)Hearing response.

    22)Financial statements FY 2021 and FY 2022

    23)BAS statements Apr 2021 – Dec 2022.

    24) Organisation chart Managing Director – Trevor Bulloch with reporting to him the Office Manager, the Sales & Purchasing (Martin F/T) and the Workshop Manager (Walter).  

    Office Manager (the nominee) with the following reporting to him; Marketing Specialist (Sarah F/T), Graphic Design (Leonard F/T) & Finance Manager (Mark W F/T).

    Reporting to the Sales & Purchasing is a Despatch employee (Michael F/T) and reporting to the Workshop Manager are the Welders and Fabricators.

    25) Samples of work purportedly showing the nominee as Manager organising a teams online meeting in 2022, ordering stationary from Officeworks 2023, invoicing sample from Zero, Quote Won/Loss analysis by the nominee 2023, shipment advice.

    Documents were provided on 3 March 2023.

    26) Statement by Managing Director 10 February 2023 regarding the nominee’s tasks and responsibilities and stating he has worked as an Office Manager since 28 August 2017.

    a.Oversee and support all administrative duties in the office and ensure that the office is operating smoothly.

    b.Manage office supplies inventory and place orders as necessary.

    c.Monitor and review work performance of staff.

    d.Manage and maintain records and accounts of the office.

    e.Monitor compliance with occupational health and safety regulations.

    f.Develop office policies and procedures, and ensure they are implemented appropriately.

    g.Booking Freight, ie TNT

    h.Maintain and comply with government legislation and procedures.

    i.Identify opportunities for process and office management improvements, and design and implement new systems.

    j.Provide other administrative support as necessary, including scheduling group meetings, maintaining calendars, and creating reports.

    k.Develop organizational procedures and systems for office personnel, including filing, invoicing, accounts payable, payroll and scheduling if required

    l.Order supplies and equipment as needed.

    m.Establish a team atmosphere through leadership and employee development.

    n.Receiving Off Goods and approving for Billing.

    27) Salary the nominee 28 February 2023 showing statement form the Managing Director Mr Bulloch showing salary for the nominee as FY 2020 $52,000, FY 2021 $58,159 and FY 2022 $69,385.

    28) Further copy of same statement from the Managing Director 10 Feb 2023 as above.