Beulah Meat Products PTY LTD (Migration)

Beulah Meat Products PTY LTD (Migration) [2023] AATA 1381 (9 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Beulah Meat Products PTY LTD
REPRESENTATIVE:  Mr Felix Carao (MARN: 1069354)
CASE NUMBER:  1929039
HOME AFFAIRS REFERENCE(S):          BCC2019/2619213
MEMBER:Alan McMurran
DATE:9 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 May 2023 at 1:35pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – butcher/smallgoods maker – financial capacity to employ nominee for 2 years – combined hearing with review of visa refusal – business growth and profitability since nominee employed and while exempt from COVID lockdowns – directors using business trading to reduce debts from initial funding of business – labour shortages in sector – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(5)(n)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 14 October 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2019 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 was represented in relation to the review by a registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Background
The applicant, Beulah Meat Products Pty.Ltd.(“the nominator”), an Australian registered corporation in Victoria, and trading as Beulah Meat Butcher Shop applied for approval on 20 May 2019. The nominator is seeking to continue to employ the nominee, Jaime Jr Asuncion Tisico (“the nominee”), a 36 year old citizen of the Republic of the Philippines, in the occupation of Butcher or Smallgoods Maker (ANZSCO 351211) (“the occupation”).
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 reg 5.19(5)(n) of the Regulations, because the applicant’s business was trading at a loss in 2019 and the evidence did not satisfy the requirement that the nominator’s business has the capacity to employ the identified person (the nominee) for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year.
The hearing
The applicant appeared by its director before the Tribunal, with the nominee, in a combined two-hour hearing by video on 8 May 2023 to give evidence and present arguments. The applicant and the nominee were in Melbourne with the nominee’s family, and the authorised director for giving the evidence, Ms Palor (“the director”). A second director, Ms Kapunan, also appeared by video from the Philippines, but did not give evidence. The Tribunal was in Sydney.
No interpreter was requested and the witnesses gave their evidence in English. There was no issue raised or detected with the giving of evidence in the English language.
The representative for both the applicant and the nominee was also present but made no submissions. The representative indicated the parties were ready to proceed and no adjournment was requested, nor any extension of time required for the provision of further documentation. This was subject to a request at the end of the hearing that the representative provide additional documents by Tuesday 9 May 23.
The applicant provided the additional documents as requested following the hearing, being the two most recent tax returns for the business and a prepared statement from the director which she read out at the hearing.
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 the Temporary Residence Transition stream 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. The Tribunal decision in respect of the primary visa applicant and his family members is dependent upon the outcome of the nomination application and is considered separately in the decision in the related Tribunal matter for the visa applicants.[1]
[1] Tribunal case 1934914
The Tribunal has available for consideration a copy of the delegate’s decision as lodged with the application, together with the Department files and the Tribunal files. The Tribunal also has regard to the Act and Regulations, Department policy where relevant, information generally available from the Internet, multiple submissions in writing from the applicant, the oral evidence from the hearing, and relevant court authorities.
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
·written certification that the nominator has not 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 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.
In this case, the visa subclass identified in the application is Subclass 186 in the employer nomination scheme, Temporary Residence Transition (“TRT”) stream. The nominee as the identified person is a ‘transitional 457’ worker at the time of application, the Subclass 457 visa being the last substantive visa held by the nominee at the time of application on 25 May 2019.
The Tribunal finds from the available information from the Department that:
a.    the application was made in accordance with approved form 1395 (Internet);
b.    the applicant has identified the position for the nominee, as a butcher working full-time in the applicant’s business in Melbourne;
c.     the applicant has identified the nominee as the person relative to the position nominated;
d.    the applicant has identified the occupation of Butcher or Smallgoods Maker (ANZSCO 351211);
e.    the applicant has identified the visa subclass, Subclass186, and the stream, TRT, to which the nomination relates;
On the available information from the Department, as the application was made on or after 12 August 2018, the Tribunal finds it is satisfied that the application was accompanied by the nomination training contribution charge, as receipted by the Department at time of lodgement, and where the applicant had identified the ‘annual turnover’ necessary in order to calculate the charge and had provided supporting documentation.
The applicant has also provided in the application the certification stating the nominator has not 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.
The Tribunal finds on the available information from the Department and documents submitted with the application, that there is no adverse information known to Immigration about the nominator or a person associated with the nominator, and relevant to the person’s suitability as an approved sponsor or a nominator.
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 (being the nominee in this case), 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 Victoria, the relevant occupation is Butcher or Smallgoods Maker, and the date of application is 25 May 2019.
On the available information, there is no requirement for an individual 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 by the nominee in the nominated occupation.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no information or evidence before the Tribunal that the applicant does not have a satisfactory record of workplace compliance in the State where it operates. The applicant has submitted that no issues have been raised regarding employment and involving the applicant or any other employee, and to the knowledge of the applicant and the nominee. The Department similarly has not provided any information which might contradict such a finding.
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 the nominator owes a debt due to the Commonwealth under s 140ZO of the Act relating to the nominator training contribution charge or any related late payment penalty.
Given the above findings, the Tribunal is satisfied that reg 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.
The Department information shows the nominee as the identified person last held a substantive visa, Subclass 457, for the occupation granted 28 May 2015, and which ceased on 28 May 2019, and which was current at the time of application. The applicant was granted a Bridging visa A which states it becomes active after 28 May 2019 and pending consideration of his Subclass 186 visa application.
The Tribunal finds that the Subclass 457 visa was granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4). The nominee is also one of the three types of person mentioned in the regulation and meets the requirements of reg 5.19(5)((a)(vi), which requires that the nominee’s bridging visa was granted on the basis that the nominee has applied for a Subclass 186 visa.
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 Butcher or Smallgoods Maker (ANZSCO 351211).
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 IMMI 18/004.
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).
On the information available, the Tribunal finds:
a.    It is satisfied that the occupation is listed in ANZSCO and has the same four digit occupation code as the occupation in respect of which the most recent Subclass 457 visa was granted.
b.    The occupation is listed in the relevant legislative instrument in force at the time of the nomination application.
c.     There is no information known to Immigration that indicates the nominee as the identified person is not genuinely performing the tasks of the occupation as described in ANZSCO.
ANZSCO describes the occupation and the tasks as follows:
3512 Butchers and Smallgoods Makers
Butchers and Smallgoods Makers select, cut, trim, prepare and arrange meat for sale and supply, operate meat and smallgoods processing machines, and manage the processes in the production of smallgoods.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
- AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
Tasks Include:
- preparing meat for sale by removing bones, trimming fat and cutting, mincing and grinding meat to shape and size for display or as ordered
- preparing crumbed cuts of meat, and marinating, seasoning and curing special cuts
- selecting and preparing meat to produce smallgoods
- operating machines to grind, mix, mince and tenderise meat
- making seasonings and pickles by mixing spices, salt and other ingredients
- operating sausage filling machines, smoking chambers, and cooking kettles and vats
- advising customers on the suitability and uses of cuts of meat
- may assist in menu planning and scheduling, and in estimating food production costs
The nominee gave evidence at the hearing that he is the only trained butcher employed by the applicant, and he outlined the tasks he performs including cutting and preparing meat and making the specialist Filipino chorizo sausages. He prepares the meat as ordered for small goods packaging, operates the machines including for sausage making and sealing, advises and serves customers, selects and orders the meat products and works alongside the director, Ms Palor, as the only other fulltime employee.
The Tribunal also heard evidence from the director, independently of the nominee, who substantiated the tasks he performs, stated she had no training or knowledge herself of butchery and meat preparation and cutting, and that the meat products are all managed and prepared by the nominee who is the only formally trained butcher working in the business.
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.
At the hearing, the Tribunal asked questions of the nominee about his background and experience as a butcher in Australia. The applicant explained he was employed and granted a 457 visa when offshore in May 2015 and gave details of his previous employer in the Philippines. He explained that he worked in the role as a butcher while on the visa from June 2015 immediately he arrived in Australia. His then employer , RJ Butcher, sold the business at the end of 2016, and the nominee was terminated and immediately found employment with the applicant where he started at its Melbourne premises in early 2017. The applicant had been one of the suppliers of sausages to the nominee’s former employer and was looking for a butcher with specialist Filipino knowledge and experience to service a Filipino clientele. The nominee was offered employment on the basis that if he worked out, the applicant agreed it would sponsor him before the end of his visa in 2019. The nominee has remained in that employment fulltime with the applicant since January 2017.

The Tribunal finds that the nominee held a Subclass 457 visa in the Standard Business Sponsorship 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).
On the available information, the Tribunal finds that the provisions relevant to reg 5.19(5)(g) do not apply in this instance. The applicant however, must satisfy reg 5.19(5)(f).
The nomination application was made on 25 May 2019.The relevant instrument made under reg 5.19(6) is IMMI 18/052. Having regard to the terms of that instrument, the Tribunal finds that it is applicable.
Regulation 5.19(5)(f) as noted above requires that the nominee in this instance was employed in the position to which the Subclass 457 visa was granted, and on a full-time basis by the former employer and then the applicant, with the employment being undertaken in Australia, for a total period of at least 3 years, and during the period of 4 years immediately before the nomination application was made (not including any periods of unpaid leave).
The Tribunal is satisfied on the evidence that the requirement in reg 5.19(5)(f) is met, and that the nominee was employed full-time and for the relevant period as required by the regulation.
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.
Department information shows that the applicant was granted a sponsorship from 2 June 2016 valid to 2 December 2017. The Tribunal is satisfied that the nominator was the last standard business sponsor to identify the identified person in an approved reg 2.72 nomination.
The director gave evidence at the hearing about the trading activity since the applicant was acquired by herself and the other director in 2015. She confirmed that the applicant traded unsuccessfully and intermittently until early 2017, after the nominee was recruited, and from which time the business has continued to grow and is now trading profitably and successfully due to his input as the butcher, and his ability to cut meat and prepare the Filipino sausages. The director read from her statement and provided a copy post-hearing, stating the following:
8 May 2023
AAT Case No: 1929039 and 1934914
Dear Member,
Please bear with me as I give you a short narrative of our humble business i must admit that we plunged in this business without much knowledge of it. we completely relied on the assurances of the previous owner that he will give us full support in running this business. So even with the little funds we had we grabbed this opportunity and I even topped up my house mortgaged to invest in this venture. One of our directors, Ms. Kapunan even quit her fulltime job to run the business, I too cut my full-time hours and worked part time to help out in short we gave it our all (time effort & resources) but as it turn out just after a few weeks the previous owner completely left us hanging in the air!
So when we were left on our own we did our best to learn everything to run the biz but with butchering we cannot do it on our own. We advertise to find a butcher but no one applied. I even physically went to Victoria Market asking help from the store owners if they know someone who can help us but I was maligned. Until we got a retired butcher to work for us couple of hours a day but did not last for long so in our first year of operation we were not able to open the shop regularly, that even in December of 2016 our first year of operation we even have to close the shop & did no business as we did not have any butcher to work for us.
Then by a strike of miracle our current nominee Jaime Tisico having heard that we desperately need a butcher applied to us so we employed him to work for us full time, started on January 2017.Because he has been a butcher in the Philippines & has already worked here in Melbourne with another Butcher shop he has a wide knowledge & skills we need to run the business. So gradually we were able to operate the business & slowly pay off our debts. I must admit that when we lodged our application for sponsorship on his employment our financial position was not that strong, however as years passed we had been dominating the market with our signature Filipino chorizo and very confident that our shop is in a much better financial position as the business has steadily kept on growing as we have continuously attracted customers to patronized our fresh meats and processed meat products. We now even have distributors who buy wholesale from us and delivers them to various groceries and supermarkets across Victoria. If not for our nominee Jaime Tisico this would not have been possible. As you grant our appeal we are looking forward to expanding the business to other states as we are already on the look out for additional employees to help in our shop.
The Tribunal accepts the director’s explanation and candid description of the early financial difficulties in the business immediately following its acquisition in 2015. It further ‘explains’ why the delegate found it difficult to accept that the applicant had sufficient financial strength to support the application at time of lodgement in 2019, when it had suffered significant losses. As the director explained at the hearing, the visa applicant’s Subclass 457 visa was about to expire, and the directors had little choice but to lodge the application. The evidence is that since 2019, and with the nominee’s assistance, the trading position for the business has improved substantially, and it is now trading ordinary business hours (since COVID-19) and servicing many other business including retail shops and restaurants. It is a credit to the applicant’s directors that the business has survived and now flourished.
The Tribunal is further satisfied on inquiry through the regulator, ASIC, and on the available information and evidence from the applicant, that the nominator is actively, currently, and lawfully operating a business as a butcher in Melbourne, 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.
The Tribunal finds in this instance that the occupation specified is not exempt.
The Tribunal has listened carefully to the oral evidence and had regard to the documents and information available. The Tribunal finds that the nominee is the only employed butcher in the applicant’s business. The business is that of a butchery and cannot operate lawfully without a trained butcher. The applicant has shown that the nominee has the requisite knowledge and experience to conduct the business as its employed butcher and evidenced by business growth.
The nominee operates under the direct supervision of the director, Ms Palor, who works alongside him in the business.
The Tribunal finds on all the available evidence that the applicant has demonstrated the need to employ the nominee in the position nominated under the nominator’s direct control, and that the need to do so is genuine.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035): reg 5.19(7).
Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The Tribunal finds that the occupation is not exempt from reg 5.19(5)(l). The Tribunal has had regard to the available information, including the written employment contract dated 5 May 2023, and provided for the hearing, together with the oral evidence from both witnesses and the financial evidence in the form of the two most recent tax returns, as submitted post-hearing.
The Tribunal finds that the written terms and conditions of the nominee’s employment include that he will continue to be employed for a period of at least two years and does not exclude the possibility of extending the period of employment.
The Tribunal also finds on the available information that the average annual market salary rate for the occupation is currently between $60,000 - $80,000.[2]
[2] Refer Payscale Australia and Indeed- Salaries Australia
The issue for the delegate was whether the nominator’s business has the capacity to employ the nominee for at least 2 years, and to continue to pay the nominee at the current agreed rate (increased since 2019) of $62,000 per annum (plus superannuation).
The Tribunal requested the applicant to provide current financial statements before the hearing. The Tribunal asked questions of the director as to the financial performance of the business. The director read out her statement as set out above (par 63). She agreed that at the time of the nomination application, the business was not profitable and was supported by funds from the directors. She said she had mortgaged her home three times to keep the business going. She said towards the end of 2016, things were getting ‘desperate’. She said at the end of 2016 they had contemplated selling the business as a Filipino butchery and with a predominantly Filipino clientele. They had advertised unsuccessfully for a fulltime butcher, and had engaged firstly, the butcher who came with the business when it was purchased in 2015, but who left after a few weeks. Next they had engaged a retired butcher who worked with them for about three months in 2016, and finally they had tried and employed a young butcher who was not able to do the professional meat cutting. As a result, the business custom and sales declined, and the shop was only able to open for a few days per week. When the nominee applied for the butcher’s position, their fortunes turned and from 2017 it grew substantially. During the pandemic, from 2020 to the present it has continued to grow and now has a substantial (85%) Filipino clientele.
The director said that they now supply a large number of restaurants and distributors in Melbourne and to some in NSW and SA with packaged chorizo sausages and other specialty meat products. She said this was all due to the skills of the nominee as the butcher and without him, the business would not have continued. She said that during 2018 and 2019 the business trading was largely used to reduce the directors’ personal debts from funding the business and to pay other debts. Those carried forward losses from the early trading years are evidenced in the current (2022) tax return. She said they have always managed to pay the nominee his agreed salary and entitlements at the appropriate market rate, and notwithstanding the business was stressed financially. The nominee agreed he has always been paid his salary and produced his current PAYG statements.
The financial statements produced by the accountant (Tax Smart Café) show in the period from 1 July 2021 to 23 March 2023, trading income totalled $1,298,189.82. Total operating expenses for that period including wages and salaries for the working director, the nominee and several casual cashiers and packers, totalled $1,174,046.87, leaving a net operating profit of $167,543.00.
In 2022, the tax return shows for that year alone a taxable net income of $221,000 (rounded). That is a substantial increase for the business with only two fulltime employees. The evidence is and the Tribunal accepts that the business continues to grow, with the assistance of the nominee. The witnesses explained that during the pandemic, the business grew substantially. This was partly because butchers were exempt from lockdowns and encouraged to work and the applicant resorted to making deliveries to clients who could no longer attend the retail premises.
Taken cumulatively and in context, on the available evidence from comparable employment advertisements and from the internet, the Tribunal finds it is satisfied that the applicant is paying the current appropriate annual market salary rate for the occupation at the nominee’s agreed salary of $62,000 per annum.
The applicant was asked, hypothetically, that where there is a proposal being considered to raise the current skilled migration income threshold (TSMIT) from $53,900 to an anticipated $70,000 per annum, whether the applicant would be able to continue the nominee’s salary at an equivalent and revised higher rate. The director stated that there would be no issue as far as its capacity to continue his employment was concerned, with the applicant increasing the nominee’s salary where that was either required or negotiated directly with him. The director stated that they believe they will continue to employ the nominee as the butcher, as the business continues to grow and for at least the next 4 years as a minimum.
The Tribunal has listened to the evidence and considered the issue at hand and having regard to the submitted material, finds it is satisfied that the applicant is paying an appropriate annual market salary rate for the occupation and further, has the capacity to continue to employ the nominee for at least 2 years and pay him at this rate. The applicant has demonstrated an ability and capacity to maintain the business through a difficult period while paying the nominee an appropriate salary throughout and has demonstrated its improved capability and performance at the time of this decision.
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 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 13/033 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 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 finds on the available evidence, which it has accepted, that the nominee’s annual earnings are in a sum currently of $62,000 per annum, which is less than the amount specified (currently $250,000) in the relevant instrument, IMMI 18/033 for reg 2.72(15)(b).As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The Tribunal finds on the available evidence that the nominee’s salary rate of $62,000 per annum is not less than the TSMIT (currently $53,900) For these reasons the requirements of reg 2.72(15)(d) are met.
The Tribunal is satisfied on the available information that the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, as determined by reference to the relevant Award[3] as the best indicator for the minimum annual market salary rate[4]. The amount payable to the nominee exceeds the minimum Award rate of $975.30 per week. For these reasons the requirements of reg 2.72(15)(e) are met.
[3] See Cth Meat Industry Award 2020 (as at March 2022) at Part 4 – cl16 – Minimum rates
[4] Currently top minimum weekly rate classification is MI 8 at $975.30 per week
The Tribunal finds that the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
The Tribunal has had regard to the evidence concerning current labour shortages for the occupation as provided by the applicant, who advertised unsuccessfully during 2016, and received no responses for a butcher experienced in Filipino-chorizo sausage making, and also as part of the prevailing conditions in the Australian labour market at the time of decision.
The Tribunal is satisfied that there is no information currently available which indicates the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. Advertisements provided by the applicant show a wide range of salaries for the occupation, both lower and higher than that offered to the nominee, but all exceeding the minimum Award rate. The Tribunal finds that in view of the nominee’s age and experience he is being currently paid according to Australian market salary rates at the lower end of the range. The range however, will vary for many reasons including location, business size, and clientele.

The applicant is currently operating as a small business, and given its history and context in suburban Melbourne, the Tribunal is satisfied that the applicable salary is in accordance with average market salary rates available for the occupation and the fact that most salaries for the occupation exceed the minimum Award requirements.
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)
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.

100. The Tribunal finds there is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for an Australian citizen or permanent resident performing equivalent work at the same location.
101. 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)
102. 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; 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.
103. The Tribunal requested information from the applicant by way of 359(2) letter issued 19 October 2022. The applicant has responded with multiple submissions in order to answer the request, not repeated here but which the Tribunal has considered. That information has been touched upon already in these reasons but includes satisfactory information that, as found and accepted by the Tribunal, the applicant has established:
a.    a genuine need for the identified person to be identified in the position under the nominator’s direct control;
b.    employment on a full-time basis for at least 2 years
c.     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

104. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
105. 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
106. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alan McMurran
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 1381

9 May 2023

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