Bamboo Productions Pty Ltd (Migration)

Bamboo Productions Pty Ltd (Migration) [2021] AATA 5563 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bamboo Productions Pty Ltd
REPRESENTATIVE:  Ms Sarah Leora Frankel
CASE NUMBER:  2006575
HOME AFFAIRS REFERENCE(S):          BCC2019/5797363
MEMBER:Peter Emmerton
DATE:20 December 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 December 2021 at 11:59am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Conference and Event Organiser – future employment – capacity to employ the identified person for at least 2 years – financial viability of the organisation – substantial revenue growth – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 March 2020 to reject the applicant’s application 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 15 November 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 Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(g) of the Regulations because they were not satisfied 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. Consequently paragraph 5.19(9)(j) is not met and therefore paragraph 5.19(4)(f) is not met, the nominator therefore does not meet Sub-regulation 5.19(4).
The applicant was represented in relation to the review.
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(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
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. The application was made on 15 November 2019 which is after 12 August 2018 and before 16 November 2019.
The subclass identified in the application is Subclass 187. The application was made in accordance with approved form 1395 (internet). It identified the position, the person in relation to the position and the occupation in relation to the position. It identified the subclass and stream to which the nomination relates.
The application was accompanied by the relevant fee mentioned in reg 5.37 and relevant nomination Training Contribution Charge. The application identified the annual turnover in their application which was corroborated during the hearing.
It included 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).
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
‘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.
There is no evidence of any adverse information relevant to the person’s suitability as an approved sponsor or a nominator before the Tribunal.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Conference and Event Organiser, ANZSCO 149311, Skill level 2 and the date of the application is 10 April 2019.
There are no relevant licencing / registration / membership requirements for this occupation.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
The Tribunal notes that there is no evidence before it that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia.
Given the above findings, the Tribunal is satisfied that reg 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 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 not been paid in full.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The Tribunal has been provided with a substantial range of financial documentation including ATO Taxation Returns for FY 2020 and FY 2021, Profit and Loss and Balance Sheet documents for the corresponding period, all of which correlated in an appropriate manner.
ASIC Registration details for this business entity were researched by the Tribunal. The Tribunal checked the status of the listed ABN, 72 611196 993 and perused the company web site. It was first registered on 3 October 2016, is currently registered and is due for review on 3 October 2024. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses. The Tribunal finds that r. 5.19(9)(b) is not relevant to the current nomination. the nominated position is within the nominator’s business and not for hire to unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply or is met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) 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(9)(d) requires this need to be genuine.
The Tribunal has had regard to the size and scope of the nominating entity’s expanding business operations. This expansion, demonstrated by current contracts and financial documents, coupled with the diversity of projects leads the Tribunal to accept that the visa applicant’s role is essential to the successful undertaking of the projects and to ensure that customer expectations can be met.
The Tribunal accepts that a valuable part of the visa applicant’s role is to be a reassuring mentor to the team, many of whom are project specific. It appreciates that the nature of these activities demands extraordinary levels of compliance within specifications and must be 100% reliable as the future engagements are critically reliant upon audience and participants satisfaction and perceived satisfaction expressed by commissioning entities. A very accurate statement well known in the industry is that “you are only as good as your last performance or show!”
It is self-evident that the nominator cannot operate this complex and growing business entity without a substantial and relatively self-contained supervisory and creative structure in place and the visa applicant is clearly 1 important member of that very small core team. Each member of that small executive team has clearly identified and delineated responsibilities.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) 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(9)(g) 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 notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(9)(g) as they were not satisfied that the nominator had demonstrated that the nominee would be employed on a full-time basis for at least 2 years under the direct control of the nominator. The delegate formed the view that insufficient evidence was provided to demonstrate the financial capacity of the nominator to undertake the requirements of r.5.19(9)(g).
The Tribunal has formed a different view having considered substantially more evidence that was presented to it, than was given to the delegate at the time of their decision. The Tribunal notes that more than 2 years have passed following the submission of the original application and the scant original associated financial documentation. There has been substantial revenue growth in that subsequent time-period. The passage of time demonstrates that the original concerns regarding the financial viability of the organisation are no longer a relevant concern as they have employed the visa holder for more than double the period stipulated in the regulations.
The Tribunal observes that the financial position for the nominator for FY 2020 and FY 2021 is relatively strong with improved revenue and profitability post the impact of Covid-19 in early 2020. The Tribunal notes revenue before Tax increased by more than 300% from a low base, between FY 2020 and FY 2021. There is a Net Profit exceeding 16% for FY 2021. There is a similar growth in equity with total equity in the company of $60,000 as of 30 June 2021. The Tribunal is well acquainted with small arts companies and acknowledges that they are rarely financially lucrative. The reality is that many survive on small Arts Industry and Government grants programs, combined with modest performance earnings garnered from project to project.
The Tribunal observes that the financial documentation shows an increasingly profitable and stable small business. It also observes that the visa applicant has been employed during this time therefore the positive Balance Sheet and Profit and Loss documents incorporate the associated employment costs. The Tribunal is cognisant of the ephemeral nature of arts and performance businesses which by their very nature are relatively low profit with a substantial degree of challenge because of their immediate customer satisfaction requirements necessary for survival.
The Tribunal accepts as fact that the business, like many businesses, was impacted as a direct result of Covid-19, as substantiated by the Financial Statements, associated with the Covid-19 pandemic, which quickly rebounded to normal revenue levels post lockdown. The Tribunal has formed a view that an organisation’s viability should not be judged solely upon the immediate financial circumstances which resulted from the Covd-19 pandemic. It does however note its’ resilience having survived a once in a century pandemic.
The growing financial stability of the nominating entity and its’ relative longevity in an ever increasingly complex and competitive arts and music environment, attests to its’ ability to employ the visa applicant. The niche market in which it operates, (Brazilian music, cultural events and performance), combined with its’ multiple product service model potentially adds an additional level of resilience. The Tribunal is aware that the largest labour component of any arts or performance industry organisation is accounted for in the contractor section of a Balance Sheet. A few core staff are usually permanent traditionally employed staff members. The majority of the employees operate as independent contractors and flex in and out on a project-by-project basis. This industry standard has proven to be a problematic structure during the Cocid-19 Pandemic as it didn’t fit most Government sponsored financial support mechanisms for the organisations or the performers because individual projects and contracts are rarely beyond the life of a particular show or event. This sadly appears to have hastened the demise of some organisations.
The Tribunal has had regard to the visa applicant’s Employment Agreement dated 14 October 2020 and the detailed position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is again reminded of the passage of more than 4 years since the original employment of the visa applicant. The passage of time has, within itself shown that the reason for the delegate’s concerns has demonstrably dissipated.

The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant with their unique competencies and experience and the nominator’s obvious reliance upon their services. This is particularly evident when considering the acknowledged challenges associated with recruiting and retaining similar individuals in Australia. The essential competencies associated with Brazilian music, cultural events and performance which form the key components of this company’s offerings, make it very difficult to recruit the individuals needed because the talent pool is very small. The obvious need for fluent Portuguese and Spanish language in addition to English in addition to technical competence, makes recruitment and retention even more challenging.
Current media and business reports analysing consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This appears to be one such sector. The problem is exacerbated if an organisation is reliant upon temporary or permanent immigration as part of their labour source. Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
The recent Australian Institute of Company Directors, (AICD), Sentiment Index Report, published 15 December 2021, also demonstrates a positive trajectory for the economy and employment.
‘More than two-thirds of directors are confident in Australia’s 12-month economic outlook. Nearly two thirds (64 per cent) believe business will be on sure footing in 12 months time, with positive indicators like investment, turnover and profits expected to grow.
While the overall outlook from directors is positive, key challenges are emerging for the post-COVID era.
Directors have identified workforce shortages as the top economic challenge facing Australian businesses, above COVID-19, climate change and Australia’s relationship with China.’
The Tribunal is aware that the workforce is relatively mobile. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. There is a strong network which operates within this industry which has the effect of making it easy to entice valuable staff to join a competitor’s organisation. This shortage appears to have been exacerbated by reports that some individuals are currently refusing Covid-19 vaccination.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (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 has perused the visa applicant’s most recent signed employment contract dated 14 October 2020. The rate of annual remuneration is $70,000 plus the Superannuation Guarantee. This exceeds the amount specified in the relevant instrument for Regulation 2.72(15)(b).
The Tribunal researched the salaries offered for similar positions and had regard for the substantial salary determination evidence provided by the applicant. The contracted remuneration appears to fall within the mid – upper quartiles of similar positions currently on offer.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) 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.
The Tribunal has perused the visa applicant’s current employment contract and is satisfied that employment conditions align with relevant legislation and regulation. It is satisfied that the terms and conditions of employment are at least equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
The Tribunal has inspected company information available on the ASIC website and checked that the ABN, 72 611 196 993 and associated business information as stated by the nominator for this business, is as indicated on the ASIC database. The website of the business has been viewed by the Tribunal prior to the hearing, as were multiple customer reviews which are publicly available on customer review media sites, indicating the apparent substantial level of customer satisfaction.
The Tribunal has in addition referred to the relevant instrument, IMMI 18/037. The Tribunal is satisfied that the nominator’s business is located at a place in regional Australia as required by reg 5.19(12)(a). Therefore reg 5.19(12)(a) is met.
The Tribunal is satisfied that the business operated by the nominator is located at that place, as required by reg 5.19(12)(b). Therefore reg 5.19(12)(b) is met.
The Tribunal has had regard to the size and scope of the nominating entity’s expanding business operations. This expansion, demonstrated by current contracts and financial documents, coupled with the diversity of projects leads the Tribunal to accept that the visa applicant’s role is essential to the successful undertaking of the projects and to ensure that customer expectations can be met.
The Tribunal accepts that a valuable part of the visa applicant’s role is to be a reassuring mentor to the team, many of whom are project specific performers or musicians who undertake time constrained contracts for individual projects. It appreciates that the nature of these activities demands extraordinary levels of compliance within specifications and must be 100% reliable, as the future performances are critically reliant upon audience satisfaction and perceived satisfaction expressed by commissioning entities. A very accurate statement well known in the industry is that “you are only as good as your last performance or show!”
It is self-evident that the nominator cannot operate this growing business entity without a substantial and relatively self-contained supervisory and creative structure in place and the visa applicant is clearly 1 important member of that very small core executive team.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work full-time in the position under the nominator’s direct control.
Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal accepts that the nominator had previously tried to fill the role. It also accepts that the personal and professional networks were utilised in an earlier attempt to recruit for the visa applicant’s position.
It is recognised that much of this work is regional and rural, can involve travel in variable climatic conditions. This makes recruitment and long-term retention even more difficult. The culturally specific nature of the role, coupled with high end technical, music performance, directorial and performance skills, makes this a very challenging role to fill within Australia. The Tribunal is satisfied that a fair and honest recruitment process was undertaken in a very limited talent pool.
The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims.
The Tribunal once again observes that substantially more corroborative evidence was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the time which have elapsed since the original application was made, during which time the visa applicant has been employed by her current employer. The Tribunal, as stated previously, acknowledges the current employment market distortions created by the Covid-19 pandemic coupled with the Talent pool drain to the Eastern States. It is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
The Tribunal again notes that the current economic trends demonstrate a rapid rebound in the economy post Covid-19 in Australia, at a rate that has exceeded most economic analyst’s predictions. This has already highlighted deficits in some areas of the employment market. Not unsurprisingly fields which involve long lead times, require substantial investment in training and sophisticated levels of technical expertise appear to be within the cluster of careers showing early signs of demand exceeding supply. The Tribunal notes that this has in-fact been the case in this field for a substantial number of years prior to Covid-19 but the issue is being accentuated under the current conditions.
This trend is also becoming apparent in areas where Australia has relied upon both temporary and permanent immigration to meet labour demands. This has long been the case in regional locations. The Tribunal anticipates the likelihood of this trend continuing and potentially accelerating for some time, as Governments maintain border closures, (current Australian Budget predicts the restricted national border opening in late 2021) and focus upon reducing unemployment whilst stimulating economic activity. This is invariably exacerbated in isolated regional locations such as the location of the business currently under review. The fact that the national border has been closed for the last 2 years has made it impossible to bring additional talent in from appropriate source countries. IN effect the talent pool has been frozen in time.
The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned as required by reg 5.19(12)(c). Therefore reg 5.19(12)(c) is met.
The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 149311, Conference and Event Organiser and the stated duties of the visa applicant and their employment contract. The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference.
The Tribunal has reviewed the requirements as stipulated by LIN 19/047.
The Tribunal has taken note of the substantial and varied information provided which clearly show the daily Management tasks undertaken by the visa applicant.
This role would by necessity most likely lead to a considerable degree of autonomy being associated with the planning and execution of projects being undertaken, as is reasonably expected of a Conference and Events Organiser, working in an ANZSCO level 2 designated position. The Tribunal is satisfied that the visa applicant is operating at that level.
The visa applicant would most likely report performance in all KPI areas via established systems. This coincides with the Tribunal’s expectations of a senior Management role reporting directly to the executive management.
The Tribunal acknowledges that this is a complex operation involving a vast array of service and product offerings, across multiple sites with a growing annual turnover and profit. It is in no doubt the visa applicant requires a degree of flexibility and subsequent autonomy performing the many and varied work duties, as you might expect in such an operation. It would not be unreasonable in the view of the Tribunal for some generalist duties to be performed from time to time in addition to the specified Managers role.
The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e). Therefore reg 5.19(12)(d) and (e) are met.
The Tribunal has had regard to a Form 1404 issued by an RCB dated 6 October 2020.
It is satisfied that a specified Regional Certifying Body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f). Therefore reg 5.19(12)(f) is met.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
decision
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
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.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)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;
(g)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;
(h)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;
(i)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;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2021] AATA 5563

20 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction