Barakah Housing Pty Ltd (Migration)

Barakah Housing Pty Ltd (Migration) [2020] AATA 2931 (29 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Barakah Housing Pty Ltd
CASE NUMBER:  1817613
DIBP REFERENCE(S):  BCC2016/4094057
MEMBER:Wan Shum
DATE:29 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 May 2020 at 9:30am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Marketing Specialist – identification of need for position – property development company – tasks of the position – bookkeeping duties – research of potential customers – liaising with sales agents – 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 Immigration on 29 May 2018 to reject the application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The application for approval was made by Barakah Housing Pty Ltd on 5 December 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, Barakah Housing Pty Ltd (the nominator) has applied for approval of a nomination under the Direct Entry Nomination stream for the position of Marketing Specialist. The person identified for the position was Mr Md Arifuzzaman Khan.
The delegate refused the application on the basis that the nomination did not satisfy r.5.19(4) of the Regulations because the delegate considered that the nominator had not identified a need to employ a paid employee to work in the position under the nominator's direct control. The related visa application was refused because the nomination had not been approved.
Applications for review were lodged in respect of these decisions and each party was represented by the same registered migration agent.
The Tribunal invited the nominator to appear before it on 28 January 2020. The Tribunal received a request for postponement of the hearing, which it agreed to. The hearing was rescheduled for 11 February 2020, and Mr Bhuiyan, the Director, appeared on behalf of the nominator to give evidence and present arguments, and two other nominations under the 457 program. The Tribunal also received oral evidence from Mr Md Arifuzzaman Khan, Ms Aanal Parikh and Mrs Fatima Kaneez, who are all seeking visas on the basis of employment with the nominator.
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 this application meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The nominator is a property development business, although to date the focus has not been on the construction side of property development. The nominator has been involved in land acquisition and subdivision, providing water and electricity connections to lots, and then the lots are sold to builders for development. The business was registered on 20 August 2014. The Tribunal was informed that they have delivered two projects, Ponds View and Barakah Rise, while a third is awaiting DA approval. They handed over Ponds View at Schofields, NSW in 2017 and Barakah Rise in 2018. The directors are Mr Bhuiyan and his wife, Zesmin Nahar.
Mr Bhuyian has IT qualifications and previously operated another business under the name of Orbit Dimension Australia Pty Ltd, providing IT development services. However, that business has ceased operations after it entered voluntary administration in 2015 and the Tribunal notes that there is an insolvency order dated 25 September 2015 on the ASIC website in respect of this business.[1] Mr Bhuiyan gave evidence that an administrator was appointed but the matter was resolved and he paid his employees and the creditors in full and closed the business in 2016. Mr Bhuiyan stated that he had originally considered running the property business under the same ABN but due to tax issues, his solicitor advised against this and he formed a new company, Barakah Housing. He moved the property development activities, positions and needs across to the new entity. The trading name is similar to that of a business that has been operated overseas by his parents and relatives, Total Barakah Housing, in Bangladesh. The overseas business develops property in Bangladesh and has been operating for around 20 years. The Australian business is not a subsidiary although he did take over Total Barakah Housing 2 years ago.
[1] Accessed 6 March 2020. According to other notices on the website, the business was subject to a Deed of Company Arrangement and a first and final dividend was declared in 21 December 2017.
The Tribunal has before it four nominations made by the same nominator which were all refused by the Department. The matter the subject of this review is a Direct Entry nomination under the ENS. The other matters are nominations under the SBS and the then 457 visa program. The information before the Tribunal is that each of the four nominees for these positions had previously been nominated by Orbit Dimension for the same position/occupation under the 457 visa program and/or the ENS. The nominee in this case was previously approved as a Marketing Specialist for Orbit Dimension under the 457 program but the subsequent Direct Entry nomination application made by Orbit Dimension was refused.
Of the four nominees, only Mr Khan is currently employed by the nominator. The business employs three staff in total, which are the Directors, being Mr Bhuiyan and his wife, and Mr Khan. Mr Bhuiyan is the CEO. Another nominee, Ms Aanal Parikh, has worked on a casual basis for the nominator in December 2019 and January 2020.
According to the initial Genuine Position Report dated February 2020 which was provided prior to the hearing, the business engages a number of external contractors which were set out in a table under the headings ‘surveyors and engineers’, ‘building and construction companies’, ‘lawyers’, ‘accounting and finance’, ‘Sales and Service’, ‘IT Development and Security’, ‘Customer Service Management’ and ‘Marketing Manager’. While it is presented in a way which suggests that the persons or companies listed beneath have been engaged for each of these services, upon clarification, Mr Bhuiyan confirmed that those listed under ‘IT Development and Security’, ‘Customer Service Management’ and ‘Marketing Manager’ had not worked for the nominator other than Ms Aanal Parikh. The Tribunal notes that under these headings he had set out the names of the persons that had been named in the other applications made under the 457 program. Mrs Kaneez confirmed that she had never worked for the nominator. She was previously employed at Orbit Dimension before it was wound up.
Following the hearing, the Tribunal was provided with a Business Plan and Budget document dated 5 October 2015 with date last updated of 18 December 2019 and a newer version of Genuine Position Report dated February 2020. The Tribunal notes that the organisation chart of the nominator has changed considerably since the nomination was lodged, with the chart provided at time of lodgement allowing for 12 positions and the most recent version down to 5, being the two directors and the 3 remaining nominated positions of Marketing Specialist, Sales and Marketing Manager and Application Support Developer all reporting to himself as CEO. Mr Bhuiyan had given evidence at the hearing that the team would not include technical staff such as engineers, which were included in the previous organisation chart. Mr Bhuiyan claims that the plan now is to have an in-house team for sales and marketing, which is why there is a need for a Sales and Marketing Manager. He also confirmed the need for an Application Support Developer to be employed directly as well.
The nominator claims that the “nominated roles are central to the planning, development and implementation of marketing campaigns to best support sales efforts across each property development project. Application developer will work on current and future project for managing IT departmental job including web designing, security and artificial intelligence. To that end, the roles will focus on developing, coordinating and executing plans, strategies and campaigns to reach defined target markets including local & overseas ethnic investors, owner-occupiers and first home buyers. This includes developing measurable marketing campaigns that best promote the benefits of each property development project across each target market segment, and brand the business as a property developer of choice in Western Sydney.”
However, while the current organisation chart shows that the position of Marketing Specialist is filled by Mr Khan, the oral evidence given about Mr Khan’s current position is that it involves a limited range of marketing duties, as the nominator has utilised the services of real estate agents for marketing and selling their lots. The agents are set out under the ‘Sales and Service’ section of the external contractors table. Mr Bhuiyan gave evidence that Mr Khan’s employment involves bookkeeping and said that this is about 30% of his role. Mr Bhuiyan said that the intention is to have an in-house team for marketing/selling units and houses that they develop, and then Mr Khan’s position would involve more marketing. In terms of marketing and sales duties now, he mainly collects data about the property market in Western Sydney.
Mr Bhuiyan stated that the Marketing Specialist position will provide lead generation; direct sales; customer relations, dealing with enquiries; visiting the site; attend the office; negotiate and follow up customers. He expected that Mr Khan would continue with bookkeeping tasks, making up around 10-20% of his duties.
When asked why it was necessary to sponsor someone for this role, Mr Bhuiyan claimed that they tried to advertise but had not been able to find anyone suitable.
When asked how the lots are currently advertised, Mr Bhuiyan said it is all done through real estate agents, and websites such as realestate.com.au and domain.com.au. Some of the marketing is currently undertaken by Laing + Simmons, All Property Pty Ltd, LJ Hooker and they do a lot of work for free. He explained that his plan is to have an application that can be downloaded on the mobile and the product and available stock can be checked. He needs a Developer programmer to maintain and keep the website safe and running. He confirmed that maintenance and feeds are currently done by the team in Bangladesh. The Tribunal referred to the financial statements and noted that the amount spent on IT Support and Software was minimal. He agreed but said that the quality was not high and that some of the expenditure would be reflected under agency fees and also under advertising and marketing expenses.
In terms of the future vision, Mr Bhuiyan said that it is to have an in-house sales and marketing team to carry out the same activities as real estate agents, selling directly to the home-owner, advertising, designing signs, boards and brochures. This is the model for the Bangladesh business, where they have an internal sales team as there are no real estate agents in Bangladesh.
When asked what the different was between a Sales and Marketing Manager (being one of the 457 positions nominated) and Marketing Specialist, Mr Bhuiyan stated that the Sales and Marketing Manager is to make strategies and plans for lead generation, but will not have direct interaction with customers, collect market data, how to execute marketing/sales, and lead the team. The Manager will assess what needs to be done and develop the plan then pass this to the marketing specialist to implement. The marketing specialist will have direct involvement with customers and lead sales representatives. The Tribunal put to Mr Bhuiyan that the salaries offered for the two positions indicate that the Marketing Specialist will earn a higher salary than the Manager. Mr Bhuiyan said Mr Khan had more experience, he is actively working and has had an increase in his salary. However, the salary offered for a nominated position is for the actual position rather than for a specific visa applicant. Mr Bhuiyan said that if they have a team, it is the Manager who will lead the team and there will be two or three sales representatives who will report to her.
When asked whether Mr Khan’s role will change, he said not really but when they stop using agents, the role will involve more marketing but repeated that Mr Khan would still be expected to carry out bookkeeping duties. The Tribunal had concerns as to whether this meets the requirements of r.5.19(4)(h) - that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of the occupation nominated.
However, following the hearing, Mr Bhuiyan addressed the Tribunal’s concerns in the following manner:
Why we need two employees in Marketing:
BARAKAH HOUSING has requested for Sales and Marketing Manager and Marketing Specialist as Sales and Marketing Manager will be more with Director planning, meeting, meeting with council and other planning and supporting where Marketing Specialist who have been working with BARAKAH HOUSING for last one and half years will be doing his regular duties. He has been doing some other duties (bookkeeping) which he will not be engaging in future.
In terms of the Developer programmer, he stated that he wants to engage an application developer to look after the website and to enable responsive changes to Facebook/Twitter accounts, upload brochures. Currently he uses a team in Bangladesh and the agents he uses for sales and marketing also create signs and brochures. The main issue with this arrangement is that it takes time; it needs to be done quickly. Currently he sends requests to AOZ, a printing and design company, or to a team in Bangladesh. When asked how long this takes, he said that AOZ are pretty quick, they send him the proof within a couple of working days and he then he needs to ask the team in Bangladesh to upload it and that can take about a week. Mr Bhuiyan wants his own sales team. He does not need Mrs Kaneez right now, as they do not have a team in place. As to whether it would be a full-time position, Mr Bhuiyan said it would be and that there would be a need, for example if 1,000 people all jumped on-line at once.
In the document provided after the hearing, he wrote:
Application Support Developer will be a great asset for BARAKAH HOUSING intellectual property. IT team together external and internal will work to produce a savings platform application where buyers will be able to deposit their money within a time frame to secure their land or unit or land and house package in a small portion. In this current time an in house IT developer will be great to do that. The problem with third party is they sale same application with other clients and also the ideas.
Mr Bhuiyan confirmed that the nominator did not hand over any projects last year; they had been waiting on approval from the relevant Council which was delayed because of a court case.
Mr Bhuiyan told the Tribunal that the upcoming projects will have a total of 200 lots, and around 82 apartments, so he will need around three sales representatives. In 2017, they sold 37 lots; whereas this will be more than 200. Having regard to the updated organisation chart, the Tribunal notes that the nominator does not employ any sales representatives. In terms of the Customer Service Manager position nominated, it appeared to the Tribunal that this was a sales representative role. Mr Bhuiyan agreed and indicated that he would not be pursuing the application for CSM. The nominator has withdrawn the application for review relating to that matter.
The Tribunal also spoke to Mr Khan about his current duties and his understanding of the nominated position. Mr Khan confirmed that currently he spends about 50-60% of his time focused on marketing and 40% of this time on other jobs, including helping with company accounts and finances. He works 38 to 40 hours per week at the Kitchener Parade office. The Tribunal considered that Mr Khan demonstrated a sound knowledge of the business and spoke confidently about the plans and objectives. Mr Khan talked about the new projects and the potential clients who are more informed buyers, taking time to undertake more research and have different budgets. He explained that they are currently dealing with different market conditions, the banks are careful about lending, and impact of bushfires and the virus. His view was that the business would need to work on its online marketing, including search engine optimisation, because of the size of the company they will need to do more in relation to online presence and also increase awareness through sports sponsorships, eg kids’ teams and local soccer teams. He felt that social media is the main hub for presenting their brand. In terms of the Sales and Marketing Manager, he said there is not enough time to research and if Ms Parikh can work with them with the big projects she would develop the strategy and he would coordinate. The business focus is in the Western Suburbs, Parramatta, Canterbury and Bankstown and the target market is new couples and middle-aged customers.
The Tribunal also spoke to Ms Parikh who had some exposure to the business through her recent employment and Mrs Kaneez, who confirmed she had last worked as a developer programmer in 2016 when she was employed at Orbit Dimension. She confirmed that she had been nominated by other employers for the same position since the refusal that is under review. However, all of those were also unsuccessful.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The material on the departmental file is that the application was made on form 1395, or 1395 (Internet) and accompanied by the fee prescribed in r.5.37. The application identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The position and occupation was identified as Marketing Specialist.
A written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act was provided.
As to whether there is a need for the nominator to employ a paid employee to work in the position of Marketing Specialist under their direct control, the Tribunal has considered the description of the position as set out in the employment contract. It has also taken into account the oral evidence of the Director and the nominee. While Mr Khan’s current position currently incorporates duties that are not those of a Marketing Specialist, it considers that the position of Marketing Specialist in a property development company which focuses on land subdivision is reasonable. It has thus formed the view that the need for this position has been identified.

Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Information before the Tribunal includes business activity statements, financial reports, company tax returns, organisational chart and an ASIC current and historical company extract and oral evidence given at the hearing.
The Tribunal finds that the nominator is actively and lawfully operating a business in Australia, specifically a property development business in Sydney, and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour-hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. There is no information to indicate that it is involved in labour-hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Having considered the terms of the employee contract and the financials of the business to date and the evidence of continuing projects, the Tribunal finds that the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
According to the organisation chart provided and the evidence of Mr Bhuiyan, there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. The position is to be filled by the only non-Director employee of the business.
The most recent version of the employment contract sets out a salary of $65,000 to be paid fortnightly, with superannuation being paid in accordance with the Superannuation Guarantee Administration Act 1992 and that terms and conditions are in line with the applicable legislation. The accompanying attachment sets out the position description, qualifications and knowledge and skills required, indicating that 4 to 6 years related marketing experience is a requirement.
In terms of whether the salary payable for this position of $65,000 would be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, the Tribunal has been presented with external market salary data from the PayScale and indeed websites. According to the PayScale website, the average pay for a Marketing Specialist in Sydney. Australia was $66,367, with the salary range between $53K and $89K. No date is visible on that document, but a similar amount appears upon checking on 27 May 2020, which indicates that an early career Marketing Specialist with 1 to 4 years of experience earns an average total compensation of AU$65,148 based on 131 salaries and a mid-career Marketing Specialist with 5 to 9 years of experience earns an average total compensation of AU$75,015 based on 66 salaries. The information provided from the indeed website shows an average salary of $74,725 for a Marketing Specialist in Australia, based on past 36 months data and last updated 13 February 2020. The evidence from Payscale is based on the same location of Sydney, which is more relevant in this case. The Tribunal considers the amount of $65,000 is within the salary range listed on the Payscale website for the same location of Sydney, consistent with a early to mid-career Marketing Specialist, bearing in mind that the figures referred to above are for total compensation, that is including tips, bonus and over-time.
Having considered the information presented, the Tribunal considers that the salary payable and terms and conditions of employment would be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The information before the Tribunal is that the Director previously operated a business, Orbit Dimension, which went into voluntary administration. Mr Bhuiyan stated that it was completely unintentional, and the nature of the business was such that he relied upon third party contracts and it was not entirely in his hands. He confirmed that he had managed to pay all amounts owing to the creditors and the ATO. However, as it has been more than 3 years since Orbit Dimension became insolvent, it is not ‘adverse information’ as defined for the purposes of this case.
The Tribunal further notes that Orbit Dimension’s sponsorship approval as a standard business sponsor was cancelled on 27 August 2015. This also occurred more than 3 years ago.
The Tribunal is not aware of any other relevant information. As it has been over 3 years since Mr Bhuiyan’s previous business was closed as a result of becoming insolvent and the sponsorship approval was cancelled, the Tribunal finds that there is no adverse information known to Immigration about the nominator or person associated with the nominator. Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to indicate that the nominator has not complied with workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and, for a position not located in regional Australia, require that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 13/030), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met.
The Tribunal notes that the Director’s oral evidence was that currently Mr Khan’s tasks include bookkeeping. While he said that the position would have a higher proportion of marketing tasks at the hearing, he also stated that Mr Khan would be expected to continue with bookkeeping tasks. The Tribunal does not consider that bookkeeping tasks correspond to the tasks of a Marketing Specialist. Following the hearing, the Director wrote that Mr Khan “has been doing some other duties (bookkeeping) which he will not be engaging in future”.
According to ANZSCO, a Marketing Specialist “identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.”
In the updated Genuine Position Report, the following tasks were identified for the position of Marketing Specialist:
·Identifying and defining market opportunities, and developing & coordinating measurable marketing campaigns for each residential property development project to best support sales efforts;
·Advising management on advertising and marketing strategies and campaigns to reach defined target markets;
·Building BARAKAH HOUSING brand recognition, awareness and the company’s reputation across target markets;
·Promoting the key benefits of each property development project through marketing initiatives to drive call-to-action and support sales efforts;
·Identifying the appropriate media channels to reach target markets and coordinating production of advertising campaigns including artwork, copywriting, media scripting and media placement within time and budgetary constraints;
·Developing and enforcing BARAKAH HOUSING brand marketing guidelines to create a cohesive feel across each marketing campaign;
·Researching and analyzing data including target customer buying patterns & preferences, pricing, as well as demographic data to interpret and predict future property buying trends in western Sydney growth areas;
·Supporting business growth through the preparation and execution of marketing plans, objectives, policies and programs;
·Commissioning and undertaking market research to identify market opportunities for current and future residential property development projects.
Some of the points above are a direct copy of the ANZSCO description. However, having also considered the oral evidence of the parties, the Tribunal accepts that Mr Khan has been undertaking some tasks which are consistent with a Marketing Specialist such as research of potential customers in the target area and liaising with sales agents to achieve sales. It is thus prepared to accept that he will be expected to continue with those activities, that he will cease bookkeeping duties as submitted after the hearing and will undertake the additional duties described above. These are consistent with the ANZSCO description of Marketing Specialist and the duties outlined under the Unit Group of ADVERTISING AND MARKETING PROFESSIONALS.
The Tribunal finds on the information before it that the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument, noting that there are no additional applicability requirements for that occupation.
In terms of the training benchmark, the Tribunal has been provided with evidence of recent training payments to nortwest Pty Ltd in February 2020 and for training by city institute in February 2016. The February 2016 training is not recent expenditure given that 4 years have passed. In terms of the recent payment for training, as the nominator does not employ any Australians other than the directors, the expenditure does not meet the terms of the instrument IMMI 13/030. The Tribunal was subsequently provided with evidence of recent payments to NSW TAFE for the Building and Construction industry training fund of $1,450 for the ENS and $3,708.40 for the 457 program. The Building and Construction industry would appear to be the most relevant to the nominator’s business. It is not clear to the Tribunal whether a payment which appears to have been made in respect of the 457 program meets the terms of the instrument. But as there does not appear to be any specifications in relation to this, the Tribunal considers that both amounts can be taken into account in determining whether the terms of IMMI 13/030 have been met. In terms of payroll for a recent 12-month period, the Tribunal was provided with BAS for each quarter in the 2019 calendar year which sets out wages paid, and also a Payroll Employee Summary for 1 July 2019 to 30 June 2020 (this appears to be an error in the end date). The wages paid for the 12-month period to 31 December 2019 plus the amount paid for superannuation amounted to $158,812.88.
It is satisfied that the amount of $5,158.40 is more than 2% of the payroll for a recent 12-month period, specifically January to December 2019 which amounted to $158,812.88. Given this, the nominator meets training benchmark A.
The Tribunal finds that the requirements of r.5.19(4)(h)(i) are met, and therefore r.5.19(4)(h) has been met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Wan Shum
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2020] AATA 2931

29 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal