Brisbane Education & Training Institute Pty Ltd (Migration)

Brisbane Education & Training Institute Pty Ltd (Migration) [2023] AATA 2170 (9 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Brisbane Education & Training Institute Pty Ltd
REPRESENTATIVE:  Mr Sourabh Aggarwal (MARN: 1462159)
CASE NUMBER:  1919087
HOME AFFAIRS REFERENCE(S):          BCC2018/818351
MEMBER:Ian Berry
DATE:9 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 09 June 2023 at 12:50pm
CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Office Manager – position associated with the nominated occupation is not genuine – nominator did not provide requested information –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR, 359
Migration Regulations 1994, 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 (DOHA) on 27 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 20 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because there was not enough information supporting the need for the nominator to have an office manager.
The applicant, through one of its two directors Mr Imran Muhammad (Sunny), appeared before the Tribunal on 2 February 2023 and then on 7 March 2023 to give evidence and present arguments. This hearing was combined with the nominee’s visa hearing. Mrs Farzana Farzana (Mrs Farzana) was not in attendance while the Sunny gave his evidence on the applicant’s behalf. Sunny was the only witness for the applicant. Both cases could be combined as the issues in both cases were related. The combined hearing was a means to achieving the objective of it being just and expedient. The hearings were conducted through Teams video in the office of the parties’ migration representative who attended at the hearings.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
Need for an Office Manager?
The applicant conducts a driving school business, established after the incorporation of the applicant on 17 October 2017. The nomination application has the business:
·Needing an office manager ANZSCO code who will be paid an annual salary of $55,000 plus the superannuation guarantee contribution.
·The salary was determined by ‘PayScale’.
·Employs seven people including Australian citizens and permanent residents (Australian workers) and 1 foreign employee. There is no information as to the foreign employee. Sunny gave evidence that there were four or five employees.
·The nominated person is Mrs Farzana.
The applicant initially had only one director, Sunny, another director was appointed in 2019. The new director had certain expertise as he had been previously employed with the Department of Mains Roads (TMR).
Sunny confirmed that at nomination, there were five employees, including himself: two instructors/trainers, an administration assistant and a compliance officer who did the paperwork associated with the Transport and registered training organisations (RTO). Sunny was then and now an instructor and assessor. The nominee was not then employed.
As to when and why the business needed an office manager, Sunny explained the applicant’s business commenced operating a few months after incorporation and in early 2018, Sunny considered that in order to grow, the business needed to have someone undertaking the administration including the paperwork. As Sunny was on the road as a trainer and assessor needing someone in the office to take the calls and do the paperwork including polices relating to the TMR and the body dealing with registering driving schools, also in dealing with the RTO and ASQA[1] though he did say that he was registered and was trading. The applicant decided to employ a person who would assist him. He considered the position of the Office Manager as the right occupation to help with the paperwork and administration.
[1] Australian Skills Quality Authority
The applicant’s written submission dated 1 March 2018, on the genuineness of the position of Office Manager ANZSCO, is:
‘I wish to advise that Brisbane Education & Training Institute Pty Ltd has offered employment to Mrs Farzana in the position of an Office Manager on a Full-Time Basis. This position is a genuine position and our business requires the position of an office manager in the business aims to grow and take large market share in the region and require the capabilities of a paid employee to satisfy the growing demand.
The position for an Office Manager in our company is genuine and ensures that we can maintain our business internal efficiency and ensure that the company continues to grow and prosper the business is essential for our company’s growth and requires the skill and expertise of Mrs Farzana to perform the position’.
Tribunal enquired of the applicant as to the exact date of the commencement of the nominee’s employment. Sunny could not answer and sought leave to check the payslips on his commuter. On scrutinising the nominee’s payslip records, Sunny gave Mrs Farzana’s commencement date as the 18 December 2018. The Tribunal’s concern is the applicant’s genuine need to appoint the nominee to satisfy its growing need to expand. The employment agreement signed by both the nominee and the applicant on 19 February 2018, with the nominee with the nominee’s employment until 18 December 2018, the Tribunal questioned Sunny as to why her employment was so delayed, particularly as he said she was needed to undertake the office manager’s duties. Sunny had previously given evidence of the need for the nominee as the office manager to assist with the paperwork concerning compliance. Sunny responded by saying it was his compliance officer who was doing the paper work and the nominee was to assist.
Another letter dated 1 March 2018, from the applicant to DOHA reinforced the intention to employ the nominee. This letter was about salary determination:
‘1^st of March 2018
RE: NEED FOR A PAID EMPLOYEE NOMINEE REG 5.19(4)(A)
FARZANA
I wish to advise that Brisbane education & training Institute Pty Ltd has offered employment to Mrs Farzana in the position of an office manager on a Full Time Basis. This position is a genuine position and our business requires the position of an office manager is the business aims to grow and take large market share in the region and requires the capabilities of a paid employee to satisfy the growing demand.
The position for an office manager in our company is genuine and ensures that we can maintain our business internal efficiency and ensure that the company continues to grow and prosper the position is essential for our companies’ growth and requires the skill and expertise of Mrs Farzana to perform this position.
The position of an Office Manager in our company will include the following but are not limited to: (details position description letter has been attached separately).
·Maintains office services by organising office operations and procedures
·Maintains office efficiency by planning and implementing office systems, layouts, and equipment procurement.
·Designs and implements office policies by establishing standards and procedures; measuring results against standards; making necessary adjustments.
·Keeps management informed by reviewing and analysing special reports; summarising information; identifying trends.
·Maintains office staff by recruiting, selecting, orienting, and training employees.
·Maintains professional and technical knowledge by attending educational workshops; reviewing professional publications; establishing personal networks; participating in professional societies.
·Achieves financial objectives by preparing an annual budget; scheduling expenditures; analyzing variances; initiating corrective actions.
·Contributes to team effort by accomplishing related results as needed.
Our business is currently experiencing growth and is attracting many new customers. The Need for a paid employee as per reg 5.19(4)(a) for Brisbane Education & Training Institute Pty Ltd is eccentric for the future success and viability of the business as it is currently experiencing growth and needs the skills and competencies of an office manager.
The nominee being a paid employee possesses office manager skills to maintain office services by organizing office operations and procedures. This will allow growth of the business and acquire large market share within the region and requires the capabilities of a paid employee to satisfy the growth demand while maintaining the current client base.
If you have any further queries please don’t hesitate to contact us.
Yours Faithfully
DIRECTOR
(Signature of director)
IMRAN HUHAMMAD
The employment agreement states that the contract will apply from 19 February 2018 and will cease on 18 February 2022. Later in the agreement the applicant was to employ the nominee for a minimum period of four years.[2]
[2] Employment agreement paragraph 1.
The applicant made the assertion that it needed an office manager. The applicant’s business commenced in late 2017. Notwithstanding the 1 March 2018 letter, the applicant does not employ the nominee until 18 December 2018. The Tribunal questioned as to the nature of the urgency for the employment of the office manager. Sunny explained, he wanted to expand his business so he needed to make the application in February 2018, but says that he ‘did not need officer (office manager) at that time, but I wanted my business to expand so launched the application…’ . He adds that he needed the employment contract in place because of the Australian Skilled Quality Authority. He needed to have in place an organisational chart in place of the people who are ‘coming on board’. The applicant decided that it needed an employment contract to give ASQA the impression of its structure. The Tribunal gives little weight to the submission as on the one hand the applicant needs the position filled to fulfil the growth of the business and yet does not employ the nominee until 18 December 2018.
Dated 28 February 2023, the applicant makes a submission, after the first hearing date, the applicant refers to the issue of the employment of the nominee:
‘In the initial hearing session, the member raised concern regarding Farzana’s employment start date. Employment contract was signed on 19 February 2018 and nomination was lodged on 20 February 2018 and Farzana started employment from December 2018. There is a delay in Farzana’s employment because the nominator intended to start her employment once nomination is approved. They expected the estimated processing time to be a maximum of 6 months. However, it took longer time than usual for the application outcome and soon as the sponsoring business requires a services, for designer started her employment from December 2018. Additionally, its requirement of Australian Skills Quality Authority “ASQA” to have supporting evidence of all employees who will be working in the Registered Training Organisation at the time of approval such as job role of office manager where Farzana was meant to be employed at the time of application and the time of approval. The Department made nomination decision on 27 June 2019.
Employer used his resources to collect information from the previous agent (Mofid Bebawy[3]) who dealt with Farzana’s case, but unfortunately no information can be sourced, since his MARA Registration was cancelled on 14 February 2019, so he is non-contactable and unaccountable as per OMARA. Employer has used all its resources to gather information from sanctioned MARA agent and RCB but failed as a result there was delay in submission. AAT is independent of the person or Department that made the original decision. It’s duty of respectable member to take fresh look at the facts, law and policy relating to that decision. In most cases, the AAT and their respected member look at new information that was not available to the original decision-maker. The information provided by the sanctioned RMA[4] was not appropriate and contain many gaps as such that information must not be considered by the member. If member relies on the information provided at the time of application and prior to decision, the decision can’t be legally correct or preferable decision.
[3] the once migration representative Mr Mofid Bebawy was deregistered as a migration representative.
[4] RMA acronym for registered migration agent.
Conclusion:
To sum up, I would request the Tribunal to please take a fresh look at the relevant facts, law and policy and arrive at their decision. All the previous submission provided prior to June 2019 must be discarded as the information is old and not legally correct with lot of gaps in the documents prepared by the RMA[5] Mofid Bebawy. My colleague has requested the original decision to be vacated and information should be considered prior to decision making. I request member to consider the time spent by family in Australia and best interest of minor child who are Australian citizen. It’s in public interest that nomination application should be approved because Australia is in midst of skill shortage of workers with the necessary skills plus nominated applicant is mother of Australian citizen where her departure would cause unnecessary trouble to the minor children and education along with well-being.
(Signed by migration representative)
[5] Registered migration agent.
The applicant’s submission is unhelpful. The applicant does not state as to what the applicant has provided to the previous migration agent which is unsafe because either it is wrong or accurate. Moreover, as the representative refers, the above statement was written in response to questions posed by the Tribunal and answered by the applicant. His answers are at variance with the above description, in that he says that the applicant was not intending to employ the nominee until December 2018 or when the visa was approved. Firstly, that is not what the employment agreement expressly stated. The nominee was to be employed for 4 years commencing on the date of the agreement. The applicant concedes to present to ASQA that it had employed within its organisational structure an office manager. The Tribunal places no weight on the applicant’s submission concerning the previous migration agent for the reason that it is irrelevant.
The applicant states that intended to employ the office manager when it was approved. Noting that she started her employment prior to the delegate’s decision on 27 June 2019. The Tribunal will always consider the applicant’s evidence afresh. Initially, the applicant states that the employment agreement was framed in order to give the impression with ASQA, that the applicant has or will have a compliment of employees as the organisational chart depicted, that is an office manager is within the organisation at some point. The applicant now is stating that it was not going to employ Mrs Farzana until her application was approved, yet Mrs Farzana is employed prior to the delegate’s decision. That may explain the applicant’s nomination stating it employed seven employees including its director. When the Tribunal enquired as to its employees at nomination, Sunny said five employees.
In an undated submission to DOHA, under the heading ‘GENUINENESS OF THE POSITION’, the applicant’s submission as to genuineness states the following:
‘The Office Manager goes above and beyond basic administrative tasks and takes on multiple projects at once. The Office Manager has excellent worth ethics and strengths in boosting company morale. With the ever increasing scope of business and the client base, the Office Manager has to be quality focused and committed to approaching administrative tasks with tenacity and along with attention to detail.
The business has seen a drastic growth in sales in the past few months. In order to attend to the increasing number of clients and the expectation for an exceptional customer service, Brisbane Education and Training Institute wishes to expand its service portfolio in the following years of operations.
Currently, Brisbane Education and Training Institute has no dedicated full-time Office Manager position within the business which has proven to be a challenge you to ever increasing daily activities. Because the business is in the growth phase and there is an urgent need to define the business values and equity in the long run to be able to deliver the defined numbers. Brisbane Education and Training Institute requires a full-time dedicated position of Office Manager to will make the Institute more efficient in delivering a pleasing, memorable experience.
The owner wishes to sponsor Mrs Farzana has an Office Manager to ensure excellent customer service and lift administrative tasks off the Director. The full-time position fits within the scope and scale of the business and has not been created to facilitate the entry into Australia of the nominee. Her duties will primarily include forecasted budgeting process while evaluating risks/business opportunity along with the accurate reporting of the financial results from operations, maintaining student/school files documenting student lessons, attendance, payments, and classroom-road hours.
The job duties of the Office Manager are not restricted to the above only. The office manager will also be involved in the recruitment conducting interviews, hiring of trained quality staff and classroom instructors. She will also be responsible to address and respond to driving school enquiries and concerns.’

The applicant was invited by the Tribunal to provide information to assist the Tribunal with its decision. The sec 359(2) is a routinely sent invitation and on this occasion was sent on 26 July 2022. In particular, the invitation sought information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO. To assist, a brief description was given of the matters which may be considered:
‘Job descriptions, work samples, emails, correspondence and other examples of the daily tasks performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (go to [internet search address] and type the nominated occupation is 6 digit ANZSCO code number into the ‘Search’ function).’
The Tribunal was unable to discern any information under this category, which referred to the nominee’s duties and/or tasks. Asked of both Sunny and the nominee as to the nominee’s role, the nominee was unable to assist without referring to a diary and receiving some assistance from sunny. The majority, it appeared to the Tribunal, was the applicant dealing with making bookings of clients for training sessions with their trainers and in placing examination bookings with TMR. The nominee’s evidence is this process would take 4 to 5 hours a day. Earlier in her evidence she said that there would be four of five bookings and a day as an average. Reconciling the for a five bookings with these tasks taking for a five hours, the nominee said that she spent sometimes as much is 30 minutes to 45 minutes in ringing TMR.
Applicant’s job description of the Office Manager.
To the DOHA, the applicant provides the following position description referring to Mrs Farzana:
Primary Responsibilities:
For 75 % of the office manager’s time, the office manager will have the following primary responsibilities:
1.       Maintains office services by organising office operations and procedures
2.Maintains office efficiency by planning and implementing office systems, layouts, and equipment procurement
3.Designs and implements office policies by establishing standards and procedures; measuring results against standard; making necessary adjustments.
4.Keeps management informed by reviewing and analysing special reports; summarising information; identifying trends.
5.       Maintains office staff by recruiting, selecting, orienting, and training employees.
6.Maintains professional and technical knowledge by attending educational workshops; reviewing professional publications; establishing personal networks; participating in professional societies.
7.Achieves financial objectives by preparing an annual budget; scheduling expenditure; analysing variances; initiating corrective actions.
8.       Contributes to team effort by accomplishing related results as needed.
For 25% of the office managers duties will consist of work environment and communication:
9.Follow the companies procedures and policies including its Work Health and safety policies.
10.      Communicate with other staff members.
11.      Display a positive attitude.
12.      Being an effective, contributing and positive team member.
13.      Comply with any relevant regulations.
14.      Comply with work health and safety regulations.
15.Present to work in a timely manner being ready, willing and able to work no longer than the specified rostered time.
16.Act in a proactive manner so that conflicts, problems, alterations, hazards and like situations are avoided.
17.      At all times act in a way which is the best interest of the company.
18.      Communicate with the other employees, customers and managements.
19.      Attend meetings as required.
The applicant’s employment agreement dated 19 February 2018 also refers to duties and responsibilities, which consist of:
·Maintains office services by organising office operations and procedures.
·Controlling correspondence, designing filing systems, reviewing and approving supply requisitions, assigning and monitoring clerical functions.
·Designs and implements office policies by establishing standards and procedures. Measuring results against standards; making necessary adjustments.
·Maintains office staff by recruiting, selecting, orienteering and training employees.
·Completes operational requirements by scheduling and assigning employees. Following up on work results.
·Keeps management informed by reviewing and analysing special reports. Summarising information. Identifying trends.
·Maintains office staff job results by coaching, counselling and disciplining employees, planning, monitoring and appraising job results.
·Contributes to team effort by accomplishing related results as needed.
It is appropriate to compare the above job descriptions with that of ANZSCO at the unit level:
·Contributing to the planning and review of office services, and setting priorities in office service standards.
·Allocating human resources, space and equipment
·Assigning work to and monitoring work performance of staff
·Managing records and accounts of the office
·Liaising with Professionals to coordinate office business and to facilitate resolution of problems.
·Ensuring office equipment and supplies are maintained.
·Ensuring compliance with Occupational Health & Safety regulations
·Ensuring work complies with relevant government legislation, policies and procedures
·Coordinating personal activities such as hiring, promotions, performance, management, payroll, training and supervision
In ANZSCO’s occupation level code 512111, the Office Manager organises and controls the functions and resources of an office such as administrative systems and office personnel.
Both Sunny and the nominee gave evidence as to what the nominee did in the position of office manager. Sunny’s evidence is that he is employed by the business as a trainer and assessor. The assessments of trainee drivers relate more to the larger part of the fleet. In all other cases, the Department of Transport undertake the examining. He needed an office manager to undertake the running of the office. Also, he anticipated the business growing and an office manager would enhance the business’s growth.
Sunny gave an account as to what the nominee does as the office manager. Referring to paragraph 25 job description 2[6], the nominee undertook daily tasks by taking bookings for driving lessons. The Tribunal suggested to Sunny, taking bookings is not within the job description of maintaining office efficiency by planning and implementing office systems layouts and office procurement.
[6] Folio 8 of the decision, paragraph 25, the second numbered job description.
The nominee said she goes on to the Internet and checks to ensure whether bookings match. She referred to the Google Calendar that the office uses. At this point in time, the Tribunal experienced difficulty in understanding the nominee’s English. As the parties had requested the presence of an interpreter and agreed to call upon the person if the required assistance, the Tribunal called upon the interpreter to assist in understanding the nominee’s oral evidence. The nominee was matching bookings on the Google calendar daily. Matching bookings probably refers to customers bookings with their driving instructors. Through the interpreter the nominee said ‘I checked the rosters every day and the bookings for the students, trucks and the cars and I also check the trainers. I checked Google Trainer to ensure that the bookings match.’
Ensuring the Tribunal understood the nominee, confirmed by asking as to whether she enters bookings and deletes sessions booked checking cancelations to which she responded affirmatively. The nominee confirmed that you did that daily. Asked as to how many she would do in a day stated on average around 10 then adjusted her answer to be between 5 and 10. Then asked as to what she does stated some bookings cannot be made on the Internet so we have to call TMR to make those of bookings by telephone.
The nominee was asked as to whether she was related to the owner of a local driving school ‘Friendly Training Company’ to which she responded that she was. The Tribunal asked her as to whether the owner Mr Ali was her uncle to which she said ‘yes’. Asked as to whether she was the records manager at that driving school she also responded by saying ‘yes’. The Tribunal then put to her that there was a suggestion from an anonymous person that she was actually not working at that driving school. She denied the claim and said that she was working there and she had been working there for 3 years. She said that she had been attending the office on a daily basis and the occupied the position of records manager. The Tribunal indicated that the anonymous person suggested that she had no work experience at that driving school. The nominee denied that accusation. The nominee added that she went to university and completed her bachelor of accounting so she could work. The allegations made by anonymous person were not supported by any other information. The Tribunal does not take those allegations as being plausible on the information given and gives no weight to them.
Asked about her daily routine, further interpreter said that she makes up the roster and checks the calendar trainer. She arranges their meetings with TMR which the Tribunal believed to be an examination for a licence. Asked as to whether TMR used to any Internet calendar system she responded no.
The Tribunal asked Mrs Farzana as to how many hours she worked on the task of the Google calendar to which she responded about 4 to 5 hours in a day. Qualifying that it depends on the number of bookings in that day. Sometimes she said that there are a lot of students taking the bookings and sometimes less. The Tribunal challenged the nominee’s assessment as she had previously said that the bookings were about 5 to 10 per day. The nominee responded that the because she has to make rosters for the trainers as well as set the timetables send that to the trainers separately involved quite a lot of time. The nominee expands her answer by saying in that 4 to 5 hours there are bookings that need to be cancelled or altered as well as scanning of documents on to the computer. She said that adds to time and that’s included into the 4 to 5 hours. The nominee’s account of her work duties concerning the bookings is not plausible. As soon as it was put to her that bookings of about 5 to 10 per day would not amount to 4 to 5 hours in a day she changed her testimony by adding other tasks which apparently were within this 4 to 5 hours. For example, the nominee says that she needs to call TMR to make bookings and that takes usually half an hour to 45 minutes to complete. Again, the Tribunal questioned as to why the nominee considers it part of her role to telephone TMR in telephone calls ranging from 30 minutes to 45 minutes to complete. She said it is extra work but she does it.
Mrs Farzana said that she checks legislation with the TMR to see if there are any changes to the legislation. She also checks office supplies and equipment and deals with though this would not be done on a daily basis. She said she monitors the performance of staff as well as does invoicing. The staff she organises professional development courses and in a year she says it’s about one per week. Last time she did it was last week and upon looking at her book to which she regularly and often referred when answering questions said that the last professional course was on 2 March about a week ago. Unfortunately was becoming obvious the nominee was begetting prompts mothers behind the monitor or in looking at a book which was in front of her. The Tribunal questioned her as to what book she was referring and she said that she had trouble remembering dates and she needed to refer to it. She also said that this book was her diary.
The Tribunal found the nominee to be misinterpreting the Tribunal’s question and when she answered, her answer was lacking in detail to what she does. Surprisingly, for a person holding an office manager’s position it was very difficult to understand her English thus requiring the interpreter to intervene.
The nominee’s evidence became more specific when she had the opportunity to look at her book or in an intervening break when Sunny was called upon to provide evidence about the nominee’s position. Unfortunately, Sonny’s evidence had inconsistencies and long answers which did not have relevance to the question particular when the Tribunal’s question often required a yes or no answer. At the beginning of the hearing the Tribunal explained the need of a witness to carefully listen to the question and answer it. If the witness wanted to expand the answer then the witness can do so after answering the Tribunal’s questions.
Both Sunny and the nominee were given the opportunity of not only specifying what the nominee does on a daily basis but also generally as to what she does by way of tasks duties and responsibilities as an office manager. Her duties are more consistent with her earliest explanation when she said she was spending 4 to 5 hours doing bookings, diary entries and contacting TMR for examination dates.
By sec 359(2) letter dated 26 July 2022, the Tribunal invited the applicant to update financial and other information. The applicant was invited to provide information about the following:
‘5. Information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO;
·Job descriptions, work samples, emails, correspondence and other examples of the daily tasks performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (go to [an Internet site for the ANZSCO description roles and tasks]) and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function).’
The applicant did not avail itself of an opportunity to present examples of the office manager’s role other than the evidence given at the Tribunal.
CCIQ Form 1404
The Tribunal received the Form 1404 from the CCIQ[7]. The advice declared that the CCIQ were satisfied of the matters contained in that Form. The Tribunal gives some weight to the form 1404. Because there is no information accompanying the form either from the applicant or from the CCIQ it is difficult to determine as to the basis upon which it was certified. It states there is a need for a paid employee in the nominated position within the business activities of the nominating employer. Only limited weight can be given to it because the basis of the assessment is unknown.
[7] Queensland Chamber of Commerce and Industry Trading As Commerce of Commercial Industry Queensland a Regional Certifying Body.
Applicant’s submission dated 16 August 2022 (reg 5.19(4)(a)(ii))
The submission dated 16 August 2022, was contained in the list of documents given to the Tribunal for use in the hearings. Specifically, it refers to the above regulation. The applicant relies on the nominee working in the nominated position for the last three years. The submission alleges the nominee be employed full-time with an increased salary from $55,000-$60,000. The applicant says that the nominee has helped the business to survive during the Covid-19 pandemic. The business has experienced a sharp increase in the sales plus the nominee has reduced cost significantly. The growth in the business is evident because of the business activity statements. Further, the organisation chart in brackets as set out in the Genuine Nominated Position report, the highlights that the current employment officials within the organisation state the nominee working in a full-time capacity.
Allegations by an anonymous informant
At the second day of the hearing, Mrs Farzana was told that allegations had been received by anonymous person about her employment with another other driving school. The nominee confirmed she was related to the owner of that driving school. The allegations were she never worked in the office and was a stay-at-home mother. The Tribunal received evidence from Mrs Farzana that she confirmed working in that business and denied being a stay-at-home mother. The nomination application stated she was a mother of two children 2 sons born in 2010 and 2011. Other than the denial by the nominee no other evidence was tendered.
The Tribunal accepts the nominee’s account of her working for the previous employer as a records manager, and she has children for which she gives care, as do many mothers in the workforce.
The Tribunal gives no weight to these anonymous allegations. They were only allegations and firmly denied by the nominee.
Conclusion
For reasons given, the requirements of reg 5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Ian Berry
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)    identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)    directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)    all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2023] AATA 2170

9 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal