CICERO MANAGEMENT PTY LTD (Migration)

[2019] AATA 2650

CICERO MANAGEMENT PTY LTD (Migration) [2019] AATA 2650 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cicero Management Pty Ltd

CASE NUMBER:  1614750

DIBP REFERENCE(S):  975587040 BCC2015/3729372

MEMBER:Alison Mercer

DATE:28 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 March 2019 at 11:07am

CATCHWORDS

MIGRATION – nomination – Direct Entry Nomination stream – nomination did not satisfy – not identified a need within the business for the nominated position – whether the applicant has a genuine need for the nominated position – must identify a need for the nominator to employ a paid employee – genuine need for the paid position – legal requirement – nominated position could not be filled by an Australian employee – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 245AR(1), 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 September 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 7 December 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant, Cicero Management Pty Ltd (trading as Alex Hotel), has applied for approval of a nomination for the position of Hotel or Motel Manager (ANZSCO code 161786), seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations, as she found that the applicant had not identified a need within the business for the nominated position, given that the information provided to the Department indicated that the applicant already employed a Hotel Manager and a Night Hotel Manager. The delegate was not satisfied that the applicant had justified any need for a third Hotel Manager position.

5. The Tribunal received a review application on 13 September 2016. It was signed on behalf of the applicant by Mr Alan Ford, General Manager. The review application was accompanied by a copy of the delegate’s decision and an authority by which a registered migration agent, Ms Rachel Praxl, was appointed as the applicant’s representative and authorised recipient for correspondence.

6. On 20 December 2016, the Tribunal received the following from Mr Ford on behalf of the applicant:

   ·submissions addressing the r.5.19(4) criteria;

   ·organisational chart for the applicant;

   ·document headed ‘Alex Hotel Perth, History and Forecast;’

   ·photographs of the applicant’s premises;

   ·letter of offer dated 11 November 2015 from the applicant to the nominee, Alessandra Cappellari, for the nominated position;

   ·letter from Australian Hotels Association (Western Australia) to Mr Ford of the applicant, dated 31 October 2016, regarding the need to have sufficient Duty Managers to meet its responsibilities under the Liquor Control Act (WA) (LCA);

   ·payslips for the nominee, 31 July 2016, 9 October 2016;

   ·profit and loss statement for the applicant for 2015/16;

   ·Business Activity Statements (BAS) for the applicant for 1 October 2015 to 30 September 2016;

   ·ASIC business name registration for ‘Hotel Alex’ dated 15 October 2013;

   ·letter of offer of employment from the applicant to a third party for position of Full Time Night Duty Manager, dated 25 August 2015; and

   ·letter of offer of employment from the applicant to a third party for position of Night Manager, dated 3 March 2015.

7. On 18 October 2018, the Tribunal wrote to Mr Ford, via the agent, pursuant to s.359(2) of the Act to invite Mr Ford to provided updated and current information demonstrating how the applicant met all of the r.5.19(4) criteria. The Tribunal provided a copy of r.5.19(4) and examples of the kinds of information that would assist it, for reference.

8. On 30 October 2018, the Tribunal received the following information from the applicant’s agent:

   ·payslips for the nominee, variously dated January 2017 to October 2018;

   ·current ABN and ASIC registration information for the applicant;

   ·Regional Certifying Body (RCB) certification for the nominated position, undated, from Department of Training and Workforce Development, Government of Western Australia;

   ·statement about genuineness of the nominated position within the applicant’s business, undated, from Mr Ford;

   ·letter from the applicant to Skilled Migration WA, Department of Training and Workforce Development, Government of Western Australia, requesting RCB certification for the nominated position, dated 7 December 2015;

   ·amended company tax return for the applicant for 2016/17;

   ·PAYG payment summary statements for the nominee for 2016/17 and 2017/18;

   ·staff list for the applicant as at October 2018;

   ·comparison table between ANZSCO list of tasks for occupation of Hotel or Motel Manager, and tasks listed in position description of nominated position;

   ·registration of business name Shadow Wine Bar and Dining Room, by the applicant, 20 March 2015;

   ·letter of offer of employment from the applicant to a third party for the position of Duty Manager, dated 9 July 2018, and payslips issued to her September – October 2018;

   ·ASIC Current and Historical Company Extract for the applicant;

   ·BAS for the applicant for 2017 and 2018;

   ·position description for Hotel Duty Manager;

   ·Seek advertisement for position of Front Office Duty Manager for the applicant, 22 November 2015;

   ·organisational chart for the applicant, as at 29 October 2018;

   ·letter of offer dated 6 October 2017 from the applicant to the nominee, Alessandra Cappellari, for the nominated position;

   ·ANZSCO occupational description for Hotel and Motel Managers; and

   ·RCB certification of the nominated position, issued 12 February 2016.

9. On 7 March 2019, the applicant’s agent provided 2017/18 financial statements for the applicant.

10. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

11. 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

12. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application is compliant: r.5.19(4)(a)

13. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

14. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

15. The Tribunal notes that the delegate found that r.5.19(4)(a) was not met as she was not satisfied that the applicant business had a need for a third Hotel Manager when it already employed a Hotel Manager and a Night Manager, in addition to the nominated position. In the Tribunal’s view, r.5.19(4)(a) merely requires that the applicant has identified a need for it to employ a paid employee, which it did in its nomination form. Accordingly, the Tribunal has considered the issue of whether the applicant has a genuine need for the nominated position in its discussion of r.5.19(4)(h) below.

16. In light of the above, the Tribunal finds that the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

17. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

18. From the material on the Department’s and Tribunal’s files, the Tribunal is satisfied that the applicant’s company has been operating its business in Australia since 2013 to date.

19. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

20. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator. 

21. The Tribunal is satisfied from the material on its file and the Department’s file that the applicant’s business activities do not include those relating to labour hire to an unrelated business, and therefore, the requirement in r.5.19(4)(c) does not apply in this case.

    Term of employment of the visa holder: r.5.19(4)(d)

22. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

23. The Tribunal is satisfied from the most recent contract of employment provided (dated 6 October 2017) that the nominee is employed by the applicant on a full-time, ongoing basis, with no preclusion of renewal of employment beyond 2 years. 

24. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

25. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

26. The Tribunal is satisfied from the information provided by the applicant (specifically, the undated letter from Mr Alan Ford and agent’s submission, and supporting documents, including payslips, all provided to the Tribunal in October 2018) that there are 2 Australian citizens or permanent residents performing equivalent work in the same workplace at the same location as the nominee.  It is further satisfied that the nominated position is remunerated at the same rate as the Australian employees in the same position, and that the terms and conditions of the contract of employment for the nominee are the same as for the other equivalent Australian employees.

27. Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

28. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

29. The Tribunal has reviewed the Department’s electronic and hard copy records and is satisfied that there is no evidence to suggest that there is any adverse information known to Immigration about the nominator or person ‘associated with’ the nominator, the Tribunal finds that the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

30. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

31. There is no evidence before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria in relation to workplace relations.

32. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position, and training requirements: r.5.19(4)(h)

33. 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 16/060), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met (r.5.19(4)(h)(i)); or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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 (r.5.19(4)(h)(ii)).

34. The Tribunal notes that the applicant sought to satisfy the requirements of the second dot point at the time that it made the nomination, on the basis that the position and the applicant’s business are located in regional Australia. The Tribunal is satisfied that the position and the applicant’s business are located in West Perth, postcode 6000, according to the information in the nomination application. It is further satisfied that at the time the nomination was made on 5 September 2016, the relevant legislative instrument (IMMI 16/045) provided that the entire state of Western Australia was designated as regional Australia for the purposes of r.5.19(4)(h)(ii).

35. However, since that time, 2 new legislative instruments have come into effect in succession. The first, IMMI 17/059, came into effect on 17 November 2017, and revoked IMMI 16/045 and excluded the Perth metropolitan area (including postcode 6000) from the definition of ‘regional Australia.’ Subsequently, IMMI 18/037 came into force on 18 March 2018.  It does not explicitly revoke IMMI 16/045 and is stated only to apply to nominations lodged on or after 18 March 2018.  It also excludes the Perth metropolitan area (including postcode 6000) from the definition of ‘regional Australia.’

36. The question for the Tribunal is which instrument should apply in the present circumstances. (The Tribunal notes that a different nomination fee is payable for non-regional Australian nominations, which was not paid by the applicant, so the Tribunal cannot consider the applicant against the alternative requirements in r.5.19(4)(h)(i) above).

37. As noted, at the time that the nomination was made, IMMI 16/045 was in force (specifying all of WA as being in regional Australia) but was revoked on 17 November 2017 by IMMI 17/059 without any saving or transitional provisions. This would normally indicate that IMMI 16/045 ceased to have effect as of 17 November 2017, as IMMI 17/059 was silent on how applications that had been made but were not yet fully determined as at that date were to be treated. As noted above, IMMI 17/049 excluded metropolitan Perth (including postcode 6000) from being included in regional Australia, but was then itself repealed by IMMI 18/037 on 18 March 2018, which expressly only applies to nominations made on or after 18 March 2018. The absence of saving or transitional provisions in these instruments gives rise to a lack of clarity as to which instrument applies in the present case.

38. The current instrument (IMMI 18/037) was introduced on 18 March 2018 by the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (‘the amending regulations’). For nominations made before 18 March 2018, item 6705(1) of the amending regulations preserves the operation of any instruments made under r.5.19 that were in force immediately prior to that date:

    Despite the amendments of regulation 5.19 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to an application for approval of the nomination of a position made before the commencement day.

39. In light of the operation of item 6705(1) of the amending regulations, it appears to the Tribunal that there are sound arguments for concluding that IMMI 16/045, the instrument that was in force at the time of the nomination application, should be taken to be the applicable instrument (despite the reference to the wording ‘as in force immediately before’ the commencement of IMMI 18/037, which would suggest IMMI 17/049). However, the more beneficial reading is that this preserves the instrument in force at the time of the nomination application. The Tribunal notes that this approach has been taken by the Tribunal (differently constituted) in several previous decisions, including cases 1618099 and 1730051. Accordingly, the Tribunal considers that this is the appropriate course to take in relation to this case; that is, it finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A). The Tribunal now turns to consider whether the applicant satisfies the remainder of the criteria in the second dot point above (as set out in r.5.19(4)(h)(ii)(B) to (F)).

40. The Tribunal notes that the delegate was not satisfied that the applicant had a genuine need for a paid position for a Hotel or Motel Manager as the applicant already employed a Hotel Manager and a Night Hotel Manager. The delegate therefore found that the applicant had not demonstrated a need for a third Hotel Manager position within its business.

41. The material provided to the Tribunal by Mr Alan Ford, the applicant’s General Manager, and by the applicant’s agent, provides considerably more information about the applicant’s need for the nominated position (in addition to its other Night and/or Duty Manager positions), in the context of the regulatory framework within which the applicant operates its business.  Mr Ford states in his undated letter (provided to the Tribunal in October 2018) that the applicant operates several businesses, one of which is Hotel Alex, in Perth, in which the nominated position is based. Mr Ford indicates that this is a boutique 74 bedroom hotel with several lounges, bars, terraces, dining room and function rooms. He further states that the Hotel has a duty of care to its guests for their safety, security and wellbeing:

    As such, there is a legal requirement that we have an approved Manager on duty and  personally supervising the hotel at all times. In the absence of the General Manager and Hotel Manager, we require that a senior, experienced hospitality professional with the appropriate level of qualification is on site and acting on the senior manager’s behalf at all times that they cannot be onsite – such as overnight.

    Currently we have 3 full time Duty Managers, [employee 1], [employee 2] and [the nominee], a Night Hotel Manager [employee 4] plus myself, General Manager… however as my role of GM often requires me to attend meetings offsite, it is not practical for me to be included on the Duty Manager Roster.

    Given that we operate 24 hours a day 7 days a week, we are required to cover a total of 168 hours. Even with the 3 current managers, this equates to them working 56 hours per week, not considering meal breaks, annual leave and sick leave entitlements which would then see this figure escalate to over 60 hours per employee per week.

    It is a legal requirement for the Hotel, as licenced premises in WA to have sufficient approved managers to cover all available shifts. We have a general duty to provide a safe working environment for our staff including monitoring the risks associated with consistent long hours. Therefore, it would be feasible that we would be required to employ a minimum of 4 duty managers, each to cover 42 hours per week to ensure we meet these requirements.

    We believe it is reasonable to believe that the position has not been created for the purpose of facilitating the entry to, or stay in, Australia, for our nominee…   

1. Mr Ford also states that the Hotel Alex is listed as a 4.5 star hotel, maintains a 24 hour reception, and operates under a Hotel Restricted Liquor Licence. Finally, Mr Ford notes that the nominated position is not a new one, as there had been 3 previous Hotel Night Managers, one employed between April and June 2015, and one employed in September 2015, both of whom left their own accord to take up other opportunities. The penultimate Hotel Night Manager left in November 2015, and Mr Ford states that the Hotel was unable to find anyone local with experience to take over the role. He further states that these employees were paid a higher salary than the one offered with the nominated position, as they were based on the full time night duty, Hospitality Award and shifts, but that all the other terms and conditions were no less favourable than those that were provided to Australian employees undertaking the same work in the same workplace in the same location.

2. The Tribunal also takes into account a letter to Mr Ford from Mr Bradley Wood, CEO/Executive Director of the Australian Hotels Association (WA), dated 31 October 2016, in which Mr Wood states:

   I am writing in response to your query regarding the requirements for Approved Managers and meeting your responsibilities under the Liquor Control Act (WA) (LCA), and to express the Australian Hotels Association’s support of Alex Hotel’s application to become an approved sponsor under the Regional Sponsored Migration Scheme.

   Section 100 of the LCA requires an Approved Manager to be on site and personally supervising the business at all times:

   100. Licensee’s duties

   (1) The conduct of business under a licence is always the responsibility of the licensee and shall be personally supervised and managed by a natural person, in accordance with this section.

   (2) The licensee shall ensure that the conduct of business at the licensed premises is personally supervised and managed –

   (a) by the licensee, if there is only one licensee and that licensee is a natural person; or

   (b) by a person who is an approved unrestricted manager

   The Alex Hotel operates 24 hours a day, 7 days a week and by law is required to have an Approved Manager on duty and personally supervising the operation of the Hotel at all times.

   It is my understanding that the Alex Hotel currently has only 3 duty managers plus yourself as GM to meet this requirement. However, due to the nature of your role as GM, you are often required to attend meetings off site, so it is neither practical nor advisable to include the GM in your Duty Manager roster.

   According, you have only 3 full time managers to cover 168 hours of operation per week resulting in each manager being required to work excess of 56 hours per week. This calculation does not take into account the meal breaks, annual leave, and sick leave entitlements for your staff, which could easily see this figure in excess of 60 hours per week. As you know, you have a general duty to provide a safe working environment for your staff including monitoring the risks associated with consistent long hours.

   It is a legal requirement for licensed premises in WA to have sufficient approved managers to cover all available shifts, which in your case would be a minimum of 4 duty managers.  With 4 duty managers, each would be required to work 42 hours per week.

   Given the shortage of suitably qualified management candidates in the premium accommodation sector the Australian Hotels Association would fully support your application to become an approved sponsor under the Regional Sponsored Migration Scheme…

3. Based on the above information, and the fact that the nominee has been employed in the nominated position since late 2015, the Tribunal is satisfied that the applicant has a genuine need for the paid position, and that it is under the applicant’s direct control. Therefore, r.5.19(4)(h)(ii)(B) is satisfied.

4. Based on the written evidence from Mr Ford and Mr Wood cited above, the Tribunal is further satisfied that the applicant has been unable to fill the nominated position with a locally resident Australian citizen or permanent resident, due to a lack of suitable qualified candidates in this field. It notes that the fact that the nominated position could not be filled by an Australian employee was also certified by the relevant Regional Certifying Body (RCB) on 12 February 2016. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(C) is satisfied, and moreover, that r.5.19(4)(h)(ii)(F) is met, as the RCB also certified that there was a genuine need for the position and that its terms and conditions were not less favourable than those offered to equivalent Australian employees.

5. In relation to the issue of whether the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the Tribunal finds that the relevant instrument, IMMI 15/092, contains the ANZSCO occupation of Hotel or Motel Manager.  The Tribunal has compared the duties listed in the occupational description for a Hotel or Motel Manager contained in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary with the duties listed in the position description provided to the Tribunal. It was assisted to do this by the comparison table between the 2 prepared by the applicant’s agent, as follows:

ANZSCO tasks for Hotel or Motel Manager

Position Description for nominated position

·     Directing and overseeing reservation, reception, room service and housekeeping activities

·     Ensure that reservations, details for in-house guests are recorded correctly, ie room rates, dates of stay, authority to charge

·     Provide supervision and support to the Front Office team and other departments when required

·     Ensure a high level of cleaning and order is maintained in the workplace

·     Carry out reception duties as required

·     Supervising security arrangements, and garden and property maintenance

·     Ensure the safety and security of the property and the smooth and efficient running of the Hotel’s overnight operation

·     Planning and supervising bar, restaurant, function and conference activities

·     Observing liquor, gaming, and other laws and regulations

·     Assessing and reviewing customer satisfaction

·     Maintain effective guest relations, build rapport and offer personalised service and assistance

·     Seek opportunities to continually improve guest service

·     Handle guest requests and take personal action to ensure all requests are satisfied

·     Overseeing accounting and purchasing activities

·     Process all management accounts are required

·     Collate paperwork for departures, including credit card and company charges to be forwarded to Accounts Department

·     Complete thorough audits of all daily revenue and postings, making the necessary adjustments to ensure accuracy of reporting

·     Complete relevant computer tasks in relation to Night Audit functions, including posing room charges and daily room revenue

·     Ensuring compliance with occupational health and safety regulations

·     Be familiar with property safety, current first aid and fire emergency procedures

·     May provide guests with local tourism information, and arrange tourism information, and arrange tours and transportation

·     Talk to our guests, be a storyteller. Listen to their stories

·     Prepare and distribute relevant reports. Maintain hotel weekly and monthly statistics

·     Carry out other tasks as directed by the Hotel Manager or General Manager

1. The ANZSCO occupational description also provides the following guidance (Tribunal’s emphasis added in bold and italics):

   141311 HOTEL OR MOTEL MANAGER

   Alternative Titles:

   Hotelier
   Publican

   Organises and controls the operations of a hotel or motel to provide guest accommodation, meals and other services. Registration or licensing may be required.

   Skill Level: 2

   Specialisations:

   Duty Manager (Hotel)
   Resort Manager

2. The Tribunal notes that the position description for the nominated position does not appear to incorporate the entirety of the duties listed in ANZSCO but is nevertheless satisfied that there is a substantial correspondence between the tasks of the ANZSCO occupation and those of the nominated position, particularly in the context of the applicant’s operations as outlined by Mr Ford and Mr Wood cited above. The Tribunal is therefore satisfied that r.5.19(4)(h)(ii)(D) is met.

3. The Tribunal is satisfied that the nominated occupation relates to the nominee Ms Cappellari specified in the nomination application and it finds that r.5.19(4)(h)(ii)(DA) is met. It further finds that the applicant’s business is located in the place specified in the nomination application, and therefore r.5.19(4)(h)(ii)(E) is met.

4. Finally, the Tribunal is satisfied from the material on the Department’s file that the relevant RCB (Skilled Migration WA of the Government of Western Australia) certified on 12 February 2016 that there was a need for a paid employee in the nominated position, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment for the nominated position were no less favourable than those that would be or were being provided to an Australian employee performing equivalent work in the same workplace at the same location. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(F) is met.

5. Accordingly the requirements of r.5.19(4)(h) are met.

   Conclusion

6. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

   DECISION

7. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

   Alison Mercer
   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

   (b)be accompanied by the fee mentioned in regulation 5.37.

   …

   Direct Entry nomination

   (4)The Minister must, in writing, approve a nomination if:

   (a)the application for approval:

   (i)       is made in accordance with subregulation (2); and

   (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

   (i)       is actively and lawfully operating a business in Australia; and

   (ii)      directly operates the business; and

   (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)both of the following apply:

   (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

   (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)       are provided; or

   (ii)      would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f)either:

   (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

   (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

   (h)either:

   (i)       both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).