Bridgepro Engineering Pty Ltd (Migration)

Bridgepro Engineering Pty Ltd (Migration) [2023] AATA 3902 (22 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bridgepro Engineering Pty Ltd
REPRESENTATIVE:  Mr Prasad Pahalawela
CASE NUMBER:  2000478
HOME AFFAIRS REFERENCE(S):          BCC2019/5746397
MEMBER:Amanda Mendes Da Costa
DATE:22 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 22 August 2023 at 2.45pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry stream – Building Associate – genuine need for employment – working in the position of Supervisor for the past four years – Genuine Position Statement – certificate of the Regional Certifying Body (RCB) – Form 1404 issued by The Department of State Growth, Tasmania – 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 22 December 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 applied for approval on 13 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)(c) of the Regulations because the application for approval had not identified a need for the nominator to employ a paid employee to work in the position under the applicant’s direct control.
Via an internet-enabled audio-visual platform, Ms Alison Wheeler (the Financial and Human Relations Manager) appeared for the applicant before the Tribunal on 21 August 2023 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal notes that Ms Wheeler lives and works in Tasmania, where the applicant’s business is located. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by video. The Tribunal was satisfied that Ms Wheeler, the applicant’s representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to Ms Wheeler the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed Ms Wheeler that it would seek submissions from both her and the applicant’s representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
The applicant was represented in relation to the review, with its representative also participating in the hearing.
The documentation provided to the Tribunal for the purpose of the review includes the following:
·ASIC current and historical extract.
·ASIC company statement and solvency resolution.
·Business activity statements from July 2021 to May 2023.
·Company taxation returns for the years ended 30 June 2021 and 2022.
·Company financial statements for the years ended 30 June 2021 and 2022.
·Organizational chart.
·Position job description.
·Updated employment contract dated 1 July 2023.
·ANZSCO dictionary position description.
·Job advertisements and domestic recruitment effort summary.
·Certificate of Regional Certifying Body dated 20 January 2020.
·Genuine need position statement.
·VETASSESS skills assessment of nominee dated 19 July 2023.
·Genuine Position Statement.
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.
Having regard to the application form and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.1992) and reg 5.37(4) of the Regulations). The records of the Department confirm that the required nomination training contribution charge had been paid by the applicant and this was confirmed by Ms Wheeler during the hearing.
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.
There is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with it.
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 Tasmania, the relevant occupation is Building Associate (ANZSCO 312112) and the date of application is 13 November 2019.
The Tribunal is not aware of any mandatory licensing, registration, or professional memberships required for persons to work as Building Associates in Tasmania.
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 evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth and Tasmania (where the applicant operates its business), relating to employment.
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.
As set out above, the Tribunal is satisfied that the applicant paid the required training contribution charge at the time the application was made. Therefore, no training contribution debts have accrued.
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 the applicant’s current ASIC records, recent business activity statements (BAS), company taxation returns and financial statements and other information relating to its business operations. Based on the documentation before it and the oral evidence of Ms Wheeler, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
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 has considered the employment contract between the applicant and the nominee dated 27 June 2021 and the updated employment contract dated 1 July 2023. It notes that these contracts set out the nominee’s place of work as 19-21 Faulkner Drive, Latrobe, Tasmania 7307. The Tribunal notes that this is the address of the applicant’s business in Tasmania. Based on the evidence available at review, the Tribunal is satisfied that the nominated position of Building Associate is a permanent, full-time position within the applicant’s business and does not involve any on-hiring to any unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
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.
It is unclear whether the requirement of reg 5.19(9)(c) is directed just as a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, a decision-maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(9)(c) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(9)(c) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(9)(c) and reg 5.19(9)(d) which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(9)(e), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(9)(c), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(9)(d), the Tribunal considers that this issue is more appropriately considered under reg 5.19(9)(d).
[1] Dictionary.com.
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e., ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(9)(c) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identifying the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(9)(c) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Building Associate and on page 8 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the position of Building Associate under the applicant’s direct control such that reg 5.19(9)(c) is met.
The applicant is a Tasmanian company which has been operating a business for the past 14 years. It specialises in the design and construction of bridges, jetties, wharves, foundation piles and general civil infrastructure together with construction demolition and recycling.
The applicant’s business is based in Tasmania and it is currently involved in approximately 15 construction jobs including the construction of the Bridgewater Bridge project which is the largest infrastructure project in Tasmania to date and when completed will connect the northern and southern regions of the state.
The applicant currently has 79 full time employees (including the nominee) together with 13 apprentices and 5 trainees. The Tribunal has been working in the position of Supervisor for the past four years and in that role has had considerable experience in various aspects of the business. In the Genuine Position Statement, the applicant describes the nominee as having “highly advanced skills as a Building Associate (construction Supervisor” and that “his credentials are an essential asset to our company”. In her oral evidence, Ms Wheeler adopted this description of the nominee’ value to the applicant’s business.
The Tribunal has also had regard to the certificate of the Regional Certifying Body (RCB), being a Form 1404 issued by The Department of State Growth, Tasmania dated 20 January 2020, that the nomination satisfies the following requirements:
·That the nominee will be paid at least the annual market salary rate for the occupation.
·That there is a genuine need for the nominee to be employed in the position under the direct control of the applicant.
·That the position cannot be filled by an Australian citizen or Australian permanent resident who is living in, or would move to, the local area where the position is located.
Based on the above written evidence and the oral evidence of Ms Wheeler, the Tribunal is satisfied that is satisfied that there is a need for the nominee to be employed in the position of Supervisor (which equates to the nominated occupation of Building Associate) under the direct control of the applicant and that need is genuine.
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 employment contract and updated contract state that the nominee will be employed on a full-time basis for at least 38 hours per week plus overtime where required. The initial period of employment will be two years, and there is nothing in these documents which prevents the renewal of the employment term for a further period. Therefore, the Tribunal is satisfied that the requirements in rr 5.19(9)(e) and (f) are met.
To determine the annual market salary rate, the applicant has provided evidence of the proposed salary for the applicant of $75,000 per annum. The Tribunal has considered this offering against the minimum rates stipulated in the Building and Construction General On-Site Award 2020 ]MA000020] and is satisfied that the market salary exceeds the award rate. The applicant has provided copies of its recent BAS, financial statements and company taxation returns to show the significant quarterly turnover within the business. Based on the evidence provided, 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 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 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).
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 applicant has provided evidence that it has Australian workers performing equivalent work to the nominee. The Tribunal accepts that their salaries (together with that of the nominee) are calculated in accordance with the industrial award applicable to the nominated occupation, being the Building and Construction General on Site Award 2020 [MA000020]. The applicant has provided evidence that the annual earnings of an equivalent Australian worker, calculated by reference to the relevant provisions of the Award, amount to $75,296. The Tribunal is satisfied that the applicant has determined the AMSR in accordance with the instrument at $75,296 per annum.
For these reasons the requirements of reg 2.72(15)(c) are met.
As the TSMIT is $53,900, the salary of $75,296 per annum (excluding superannuation) plus paid overtime and a site allowance that has been offered to the nominee exceeds this amount. For these reasons the requirements of reg 2.72(15)(d) are met.
The Tribunal is satisfied that this remuneration arrangement gives to the nominee a salary in excess of the minimum required under the relevant award. For these reasons the requirements of reg 2.72(15)(e) are met.
There is no evidence before the Tribunal which suggests that the nominee has not been offered any non-monetary benefits as part of the employment contract. Therefore, the proposed remuneration represents a cash figure. Therefore, the annual earnings will still be above the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
The applicant provided evidence that the annual market salary rate (AMSR) is in accordance with the relevant award.
The Tribunal is satisfied that there is no information before Immigration to indicate that the AMSR for the nominated position is inconsistent with Australian labour market conditions relevant to the occupation of Building Associate. For these reasons the requirements of reg 2.72(15)(g) are met.
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 considered the terms and conditions of the nominee’s employment set out in the employment and updated employment contracts, and notes that the nominee’s employment conditions appear to accord with the requirements of the National Employment Standards.
The Tribunal accepts the evidence of Ms Wheeler at the hearing the applicant employs several other supervisors who are Australian citizens or permanent residents. However, their salaries are based on the same hourly rate as the nominee. Each supervisor (including the nominee) are paid an additional site allowance which is based solely based on the number of employees working at the site.
Therefore, based on the evidence before it, the Tribunal is satisfied that the nominee’s terms and conditions of employment 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 ta the same location.
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).
Regulation 5.19(12)(a) – the position is located at a place in regional Australia
In the application, the applicant indicated that the address where the nominee was to be employed was 19-21 Faulkner Drive, Latrobe, Tasmania, 7307. That postcode is specified in the relevant instrument as being in regional Australia. In her evidence at the hearing, Ms Wheeler confirmed that this is the head office of the applicant. Accordingly, the Tribunal is satisfied that the position is located at that address and that the position is located in regional Australia.
Accordingly, the requirements of reg 5.19(12)(a) are met.
Regulation 5.19(12)(b) – the business operated by the nominator is located at that place
The ASIC documents, financial documentation, updated employment contract and publicly available information (including the website for the applicant) provided establish that the applicant’s business is conducted at 19-21 Faulkner Drive, Latrobe, Tasmania. This information was confirmed by Ms Wheeler in her evidence at the hearing.
Accordingly, the requirements of reg 5.19(12)(b) are met.
Regulation 5.19(c) – the position cannot be filled by an Australian citizen or Australian permanent resident who was living in, or would move to, the local area concerned.
The Tribunal accepts Ms Wheeler’s evidence that it is particularly difficult for businesses (including that of the applicant) in Tasmania to recruit suitably qualified and experienced staff. This has been exacerbated by the effects on the local workforce of the Covid-19 pandemic. The Tribunal further accepts that applicant requires a responsible and dedicated employee to perform the nominated role and that it is difficult to secure employees to work on its sites which are often isolated and where the site supervisor is required show initiative and work without the constant supervision of the General Site Manager.
The Tribunal therefore finds that the requirements of reg 5.19(12)(c) are met.
Regulation 5.19(12)(d) – the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant legislative instrument
The relevant legislative instrument is IMMI 19/047. The occupation proposed by the applicant was Building Associate which has the six-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 312112 and is specified in the instrument.
The tasks specified in the ANZSCO for Unit Group 3121 (Architectural, Building and Surveying Technicians) which includes the occupation of Building Associate include the following:
·assisting Construction Managers, Architects and Surveyors in planning and organization;
·interpreting plans, regulations and codes of practice;
·preparing preliminary sketches, working drawings and specifications;
·preparing, editing and revising plans, maps, charts and drawings;
·coordinating works programs;
·inspecting work and materials for compliance with specifications, regulations and standards;
·calculating costs and estimating time scales;
·collecting data using surveying instruments and photogrammetric equipment;
·performing routine computations and plotting preliminary data.
The nominee’s duties according to the position description set out in the position description for the nominee’s position of Supervisor with the applicant are commensurate with those tasks set out in Unit Group 3121 of the ANZSCO dictionary for the occupation of Building Associate.
Accordingly, the Tribunal is satisfied that the requirements of reg 5.19(12)(d) are met.
Regulation 5.19(12)(e) – the occupation applies to the nominee in accordance with the relevant instrument
The occupation of Building Associate is specified in instrument IMMI 19/047. The ANZSCO dictionary classification for this occupation provides that the occupation is a Skill Level 2 occupation and that most occupations in the unit group have a skill level commensurate with an AQF Associate Degree, Advanced Diploma or Diploma. The classification further provides that at least three years of relevant experience may substitute for the formal qualifications. The applicant has provided a positive skills assessment (dated 19 July 2023) from VETASSESS for the nominee for the nominated occupation of Building Associate (ANZSCO Code 312112) which shows that the nominee’s qualifications and employment meet the requirements of the nominated occupation.
Accordingly, the requirements of reg 5.19(12)(e) are met.
Regulation 5.19(12)(f) – the Minister has been advised by a body that meets the requirements set out in reg 5.19(12)(g) (the RCB) about the three matters specified in paragraph 42 above.
The certificate referred to in paragraph 42 has been submitted to the Department and the Tribunal. The Tribunal accepts the advice given by the RCB.
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.
Amanda Mendes Da Costa
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.

[2023] AATA 3902

22 August 2023

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Immigration

Administrative Law

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