Autchariya Thai Massage Pty Ltd (Migration)

Autchariya Thai Massage Pty Ltd (Migration) [2023] AATA 798 (24 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Autchariya Thai Massage Pty Ltd
REPRESENTATIVE:  Mr Chaofeng Guan (MARN: 0001896)
CASE NUMBER:  1921778
HOME AFFAIRS REFERENCE(S):          BCC2019/1699633
MEMBER:Karen McNamara
DATE:24 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 February 2023 at 2:25pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Massage Therapist – adverse information – sponsorship bar – performing tasks outside of the nominated occupation – whether reasonable to disregard – steps taken to rectify the breach – subsequent sponsorship approval by the Department – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 140M
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 2.86, 2.89, 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 2 August 2019 to reject the application by Autchariya Thai Massage Pty Ltd (the applicant) for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 5 April 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy regulation 5.19(4)(b) because the delegate found that there was adverse information known to Immigration about the nominator and that it was not reasonable to disregard any such information.
The applicant lodged an application for review with the Tribunal on 7 August 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
On 17 January 2023, the applicant represented by Mrs Suchintana Chaitonchua appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sasipong Wangpaibul (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1928461). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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) which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
The applicant operates a massage therapy business located at Ingleburn NSW. ASIC records show the company was registered on 6 August 2014. The nominee is listed as a previous director from 6 August 2014 to 11 February 2016.
On 5 April 2019, the applicant lodged an application for an employer nomination for the position/occupation of Massage Therapist (ANZSCO 411611) under the Temporary Residence Transition stream. The nominated market salary rate is $58,000 per annum.
The applicant sponsored Mr Sasipong Wangpaibul for his Subclass 457 Visa, which Department records confirm that he held at the time of the nomination application.
Department records show that the applicant was most recently granted approval as a standard business sponsor (SBS) on 9 November 2022 to 9 November 2027.
Department records show that the nominee was granted a Subclass 457 visa on 9 March 2017. Information before the Tribunal shows that the nominee commenced full time employment with the applicant on 9 March 2017 in the position of Massage Therapist.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. The position of Massage Therapist was identified, a person (Mr Sasipong Wangpaibul) was identified in relation to that position. An occupation in relation to the position was identified (Massage Therapist (ANZSCO 411611) as was the subclass and stream to which the nomination relates (subclass 186 visa and Temporary Residence Transition stream). The nomination was accompanied by the applicable training contribution charge (as per reg 5.37). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in r.5.19(2) and that r.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.
In consideration of whether the information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B as at the time the application was lodged on 5 April 2019.[1]
[1] There were changes to the definitions of ‘adverse information’ and ‘associated with’ on 18 March 2018. The new definitions only apply to applications made on or after 18 March 2018: cl 6703 of sch 13 to the Regulations.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(b) of the Regulations, because the delegate found that there was adverse information known to Immigration about the nominator and that it was not reasonable to disregard any such information.
Information before the Tribunal shows that on the 10 January 2019, the Department sanctioned the applicant, barring the applicant as a sponsor for six months (10 January 2019 to 10 July 2019). The delegate subsequently found that it was not reasonable to disregard any such information and found the application did not meet reg 5.19(4) (b).
Evidence before the Tribunal shows that the Department’s actions were the result of monitoring during which, the Department identified that the nominee was performing tasks outside of the nominated occupation of Massage Therapist. The Department established during the monitoring that the applicant, in their capacity as a sponsor, had failed to satisfy the obligation to ensure the visa holder works in the nominated occupation of Massage Therapist and that this had occurred over a considerable period of time since 2017.
The Department therefore found that the applicant contravened regulations 2.86 and 2.89. In relation to regulation 2.89, the identified failure to satisfy the sponsorship obligations is Regulation 2.86 - obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity.
The Tribunal has considered Department records and information provided by the applicant to the Tribunal, and notes as indicated above, that on 10 January 2019 the applicant was barred from sponsoring for six months (10 January 2019 to 10 July 2019), as it was found the applicant failed to satisfy sponsorship obligations, specifically regulations 2.86 and 2.89.
The Tribunal finds that this sponsorship bar, falls within the definition of adverse information as the applicant being the nominator (1.13A(1)(b)), has been subject to an administrative action (1.13A(2)(c)) relating to Immigration.
It follows that there is adverse information known to Immigration about the nominator or a person associated with the nominator. The applicant therefore does not satisfy the requirements of reg 5.19(4) (b) (i).
As the Tribunal has found that adverse information is known to Immigration about the nominator it must consider whether it is reasonable to disregard this information.
Under Departmental policy, factors which may be taken into account in deciding whether it is reasonable to disregard the adverse information include but are not limited to:
·the nature of the adverse information
·how the adverse information arose, including the credibility of the source of the adverse information
·in the case of an alleged contravention of a law, whether the allegations have been substantiated or not
·whether the adverse information arose recently or a long time ago whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur
·information about relevant findings made by a competent authority in relation to the adverse information, and the significance attached by the competent authority to the adverse information.
Based on the evidence before it, the Tribunal acknowledges that the action taken by the Department was in relation to finding the applicant breached their sponsorship obligations for the reasons indicated previously in this decision.
Evidence before the Tribunal supports that the applicant took steps to rectify the breach upon it being brought to their attention and that the applicant cooperated with the Department throughout the monitoring period.
The Tribunal has considered the information before it in regard to the action taken by the Department in barring the applicant under section 140M(1) for a period of six months (effective from 10 January 2019) and has given weighting to the nature of the adverse information, the circumstances contributing to the Department’s decision, and the subsequent action taken by the applicant to rectify the matter.
The Tribunal has further placed weighting on the applicant’s history of sponsorship and notes Department records, which show this is first sanction imposed by the Department against the applicant during the applicant’s history of sponsorship approval. Since the issuing of the sanction in January 2019, the applicant has been granted subsequent sponsorship approval by the Department, effective 9 November 2022 to 9 November 2027.
In consideration of whether it is reasonable to disregard any adverse information in this matter, the Tribunal has taken into consideration the circumstances which contributed to the Department imposing a bar on the applicant, steps taken by the applicant to rectify the Department’s findings and that after the Department finding that there is adverse information known to Immigration, subsequently on 9 November 2022 the Department granted the applicant sponsorship approval. The Tribunal therefore finds in this instance, it is reasonable to disregard adverse information about the nominator.
Accordingly, the Tribunal is satisfied it is reasonable to disregard the information and therefore the requirements of reg 5.19(4)(b) are 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, the relevant occupation is Massage Therapist (ANZSCO 411611) and the date of application is 5 April 2019.
The Tribunal is unaware of mandatory requirements for a Massage Therapist 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. In this instance the mandatory license or registration provisions stated in 5.19(4)(c) are not relevant.
Accordingly, the Tribunal is satisfied that r.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.
There is no evidence before the Tribunal that indicates the nominator does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the Tribunal is satisfied that r.5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
There is no evidence before the Tribunal, that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
Accordingly, the Tribunal is satisfied that r.5.19(4)(da) 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.
Department records show that at the time the application for approval of the nominated position was made, the nominee held a Subclass 457 visa, granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)).
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 Massage Therapist (ANZSCO 411611).
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 specifying the occupation in this instance is LIN 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 Tribunal is satisfied that:
·The nominated occupation of Massage Therapist is listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and has the same 4-digit ANZSCO occupation unit group code (ANZSCO 4116) as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted;
·The nominated occupation of Massage Therapist is not listed in LIN 19/049 which was the legislative instrument in force at the time the application was made so there are no applicable caveats or exemptions for the occupation as set out in LIN 19/049. However, the applicant is exempt from reg 5.19(5) ( c) by the provisions of IMMI 22/038 as he held a subclass 457 visa on 18 April 2017.
There is no evidence before the Tribunal which would lead it to find that the applicant is not genuinely performing the tasks of a Massage Therapist and it is not aware of any information known to Immigration that indicates that the nominee is not genuinely performing 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 5 April 2019. The relevant instrument made under reg 5.19(6) is IMMI 22/038. Having regard to the terms of that instrument, the Tribunal finds that for persons such as the nominee who on 18 April 2017 held a subclass 457 visa, the qualifying period is 2 years.
Evidence before the Tribunal shows that the nominee was granted a subclass 457 Visa on 9 March 2017. The nominee has continued to be employed by the applicant on a full-time basis in the occupation of Massage Therapist since March 2017. The applicant has provided copies of the nominee’s PAYG’s confirming that the nominee, from March 2017 received full time remuneration.
Based on this evidence, the Tribunal is satisfied the nominee has been employed in a full-time capacity by the applicant as a Massage Therapist since 9 March 2017 whilst holding a Subclass 457 visa. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least the qualifying period of two years in the four-year period immediately before this 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.
Based on the material provided to the Tribunal, including financial statements, BAS returns, ASIC Company details and bank statements, the Tribunal is satisfied the applicant is actively and lawfully operating a massage therapy 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) (see legislative instrument IMMI 18/035): reg 5.19(7). The Tribunal is satisfied that the nominated occupation of Massage Therapist is not an exempt occupation.
In considering whether the application for approval identifies a need for the nominee to be employed in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including the oral evidence received at the hearing by the applicant.
In support of the need for the position, the applicant told the Tribunal that the nominee has remedial massage experience and has worked for the applicant on a full-time basis since 2017. Additionally, the applicant has provided a position description, organisation chart and a copy of the nominee’s employment contract indicating the objective of the role and the contribution of the position to the applicant’s business.
The Tribunal is satisfied on the information before it that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator. Accordingly, the requirement in r.5.19(5)(j) is met.
At the hearing, the applicant told the Tribunal, the need to employ the nominee in the position of Massage Therapist, is essential to the operational and business requirements associated with providing remedial massage services. Evidence before the Tribunal supports that the nominee has been employed full time by the applicant in this position since March 2017 and is experienced in the provision of remedial massage.
The Tribunal has additionally reviewed the relevant descriptors stipulated under ANZSCO 411611 for the occupation Massage Therapist and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided comprehensive description of the daily duties and tasks carried out by the nominee. The Tribunal has also afforded consideration to the environment in which the business operates, the size of the applicant’s business and operational requirements and how the tasks of a Massage Therapist (as undertaken in the nominated position) are relevant to meeting these requirements and are consistent with the applicant’s business.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports there is a genuine need for the identified person (the nominee) to be employed in the position, under the direct control of the nominator (the applicant). In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications.
The Tribunal is therefore satisfied that there is a business need for the position which supports the genuine need for the nominee to be employed in the position under the direct control of the nominator. Accordingly, the requirement of r.5.19(5)(k) is met.
On the totality of evidence before it, the Tribunal is satisfied that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator and the need is genuine.
Accordingly, the Tribunal is satisfied that r.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) (see legislative instrument 18/035): reg 5.19(7). The Tribunal is satisfied that the nominated occupation of Massage Therapist is not an exempt occupation.
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 Tribunal has had regard to the applicant’s financial information as provided to the Tribunal, the nominee’s contract of employment and information contained on the Department and Tribunal files in regard to annual market salary research undertaken by the applicant.
The nominee’s most recent contract of employment signed and dated 30 August 2022, sets out the terms and conditions of employment and indicate that the period of employment is ongoing. The contract stipulates the salary is $62,000 per annum plus superannuation with hours of work 38 hours per week. There is no term excluding an extension of the period of employment. Based on this information, the Tribunal is satisfied that the nominee will be employed for at least two years and that the terms and conditions of his employment will not exclude the possibility of extending the period of employment.
In considering whether the business has the capacity to pay the annual market salary rate for the occupation (in this instance $58,000 per annum) to the nominee for at least two years, the Tribunal has taken into consideration evidence before it, including the applicant’s most recent financial statements, documents submitted to the ATO, bank statements and letter from Accountant dated 19 January 2023, which support the applicant has met payroll and operating costs.
At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on the business. The applicant told the Tribunal that the interruptions as a result of mandatory lockdowns, resulted in a decrease in revenue as the business was closed. Evidence before the Tribunal shows that despite the impact of COVID minimising business revenue, the business is returning to steady income throughout 2022, recording positive net equity and there is no indication of substantial debt.
Whilst the lockdown restrictions impacted the applicant’s revenue and profit, the applicant is confident the COVID- 19 restrictions will not impact materially in the medium to long term and is now showing indications of returning to pre COVID sales revenue.
The Tribunal has considered the information before it, including the applicant’s most recent (2021/22) financial statements and acknowledges the applicant operates in an industry sector heavily impacted by COVID-19. Evidence before the Tribunal supports that the applicant as of 30 June 2022 recorded modest income with proportionate profit. The submitted BAS returns and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.
The Tribunal has also taken into consideration evidence before it, to support that the nominee has been continuously employed by the applicant in the nominated position since March 2017. The nominee’s bank account statements and PAYG/Income statements support the nominee has received regular salary payments and employer superannuation contributions have been paid.
The Tribunal has afforded consideration to the financial evidence before it and is satisfied on balance, the applicant has the capacity to employ the nominee for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year.
Given the above findings, the Tribunal is satisfied 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 IMMI 18/033: 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).
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings (2021/22 financial year) were $58,292 plus superannuation. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.
Evidence before the Tribunal includes the nominee’s most recent employment contract dated 30 August 2022 and PAYG/Income Statements.
Information before the Tribunal supports that the applicant determined the annual market salary, by way of reviewing advertisements for similar positions and consideration of industry salary survey information. In support of determining the annual market salary the applicant has provided to the Tribunal an advertisement published on Seek.com website and industry salary survey information on Pay Scale. The advertisements on Seek, list the salary range for a Massage Therapist position between $30 to $40 per hour (part time). PayScale note the median salary for a Massage Therapist as $54,377 per annum.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.

100. As this amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specified this as $53,900). The Tribunal is satisfied that the annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.
101. The Tribunal finds that the nominee’s annual earnings of $62,000 (as indicated in the nominee’s most recent contract of employment dated 30 August 2022) will not be less than the market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as evidenced in the nominee’s payroll information including PAYG’s/Income Statements exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.

102. Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
103. For these reasons the requirements of r.2.72(15) are satisfied.
104. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
105. 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.
106. The employment contract dated 30 August 2022, sets out the terms and conditions of employment and indicate that the nominee’s salary will be $62,000 per annum and hours of work 38 hours per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
107. The Tribunal has received copies of the nominee’s PAYG’s/Income statements and bank statements confirming that the nominee has received regular salary payments by the applicant. Superannuation information provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence, that the nominee will be paid in accordance with the terms of employment.
108. The Tribunal is satisfied on the totality of the evidence before it that there is no evidence before the Tribunal to indicate that there is 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.
109. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
110. 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). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
111. Given the above findings, the Tribunal is satisfied that the applicant satisfies reg 5.19(5)(q).
112. 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
113. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
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.

[2023] AATA 798

24 February 2023

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