Fair Price Furniture Gallery Pty Ltd (Migration) - [2022] AATA 2928

Fair Price Furniture Gallery Pty Ltd (Migration) [2022] AATA 2928 (4 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Fair Price Furniture Gallery Pty Ltd
REPRESENTATIVE:  Mr Farhan Rehman
CASE NUMBER:  1907617
HOME AFFAIRS REFERENCE(S):          BCC2017/2112067
MEMBER:Karen McNamara
DATE:4 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 04 July 2022 at 2:20pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of Retail Buyer – tasks to be performed correspond to a specified occupation – updated financial information – genuine need for the position – actively and lawfully operating a business in Australia – financial capacity to employ the nominee – terms and conditions of employment no less favourable – decision under review set aside
LEGISLATION
Corporations Act 2001, s 95A
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19
CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5
Keay v MICMSMA [2022] FedCFamC2G 223
Sri Guru Gobind Singh Transport Pty Ltd v MICMSMA [2022] FCA 118
Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758
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 14 March 2019 to reject the application by Fair Price Furniture Gallery Pty Ltd (the applicant) 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 15 June 2017. 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 regulation 5.19(4)(h)(ii)(D) because the application did not demonstrate that the tasks to be performed in the position corresponded to the occupation of Retail Buyer (ANZSCO 639211).
The applicant lodged an application for review with the Tribunal on 29 March 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
On 2 May 2022, the Tribunal invited the applicant and nominee to appear before the Tribunal to give evidence and present arguments. The invitation requested the applicant and nominee to provide the following information at least seven days prior to their scheduled hearings for 6 June 2022.
·Business bank statements showing payment of salary to nominee from March 2020 to April 2022
·PAYG/Income Statements issued to nominee 2019, 2020 & 2021 financial years
·Nominee’s personal bank statements showing receipt of salary from the nominator during the period March 2020 to April 2022,
·Nominee’s Notice of Assessments issued by ATO 2019, 2020 and 2021 financial years
·Copy of nominee’s most recent superannuation statement showing receipt of payments from nominating business.
On 30 May 2022, the representative wrote to the Tribunal by email stating;
‘ Referring to the Tribunal request for information and documents from both of my clients (Khalid Makani and Fair Price Furniture Gallery Pty Ltd), I am perplexed as to why the Tribunal has requested evidence of ATO summaries, bank statements and more evidencing wage payments. I am perplexed as it is not a criterion of the 187 RSMS DE for any such information to be requested and I am not in a position to advise my clients to provide information that they are not require to provide at law.
I kindly request you call me back so I can discuss this issue further.’
By way of return email on 30 May 2022, the Tribunal advised the representative as follows;
‘ The Member would like to reassure you that the information requested within the hearing invitation of 2 May 2022, is not at all concerned with the information contained within the 359a letter of 5 May 2022.
It is for you and the applicant to decide whether you would like to provide the requested
information. The Tribunal requests such information in these types of matters and it is your
prerogative whether you do so or not.
Please ensure that you are satisfied that you have provided us all the information you intend to rely on and that you wish the Tribunal to consider in your case.’
On 31 May 2022, the representative wrote to the Tribunal advising inter alia ;
‘We enclose the following documents:
A) Signed Hearing Certificate Fair Price Furniture;
B) Signed Hearing Certificate Muhammad Khalid Makani;
C) Passport;
D) Evidence of meeting the English Language Requirement (PTE);
E) Letter to Tribunal Re Adverse Information;
F) Executed Employment Agreement between the Nominee and Visa
Applicant;
G) ANZSCO Extract for Retail Buyer UNIT GROUP 6392 Retail and Wool Buyers;
H) Nomination Application submitted to the Department of Home Affairs.
Tribunal Request
The Tribunal requested various documents from Our Clients which included:
- Business bank statements showing payment of salary to nominee from March
2020 to April 2022
-Income Statements issued to nominee for 2019, 2020 & 2021 financial years
- Nominee’s personal bank statements showing receipt of salary from the
nominator during the period March 2020 to April 2022.
-Copy of nominee’s most recent superannuation statement showing receipt of
payments from nominating business.
- Nominee’s Notice of Assessment issued by ATO for 2019, 2020 & 2021
financial year.
None of the above mentioned documents requested are relevant to the criteria
of the 187 (DE) RSMS Nomination and or Visa Application (Applications).
We wrote to the Tribunal on 30 May 2022 seeking clarification as to why such
documents have been requested. The Tribunal did not clarify why such documents are being requested and instead stated in response;
“It is for you and the applicant to decide whether you would like to provide the requested
information. The Tribunal requests such information in these types of matters and it is your prerogative whether you do so or not.”
While these documents will be readily to be provide to the Tribunal during the time of hearing on 6 June 2022, they will not be supplied unless it is clearly specified why such documents are being requested for the purposes of the 187 (DE) RSMS Nomination and or Visa Application.’
Having consideration to the representative’s submission as to the non-provision of said information prior to the hearing, the Tribunal is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision. In undertaking this assessment, the Tribunal is aware that the concept of ‘onus of proof’ is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as necessary to enable a decision maker to establish the relevant case, and in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decision maker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.
On 6 June 2022, Mr Younus Makani (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Muhammad Khalid Makani (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1913773).
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
During the hearing the Tribunal discussed with the representative and applicant the relevance of the information requested prehearing, in so far as in affording weighting to particular criteria including rr 5.19(4) (d) and 5.19(4)(e). Whilst the Tribunal is not required to make the applicant’s case for it, the Tribunal afforded the opportunity to the applicant to provide post hearing, the information previously requested by the Tribunal on 2 May 2022.
On 18 June 2022, the applicant and nominee provided to the Tribunal the following;
·Consolidated financial statements (Nine months ending 31 March 2022)
·Letter from Accountant dated 17 June 2022 attesting to financial position of the business
·Bank Statements (Pick N save International Pty Ltd) 19 June 2018 to 30 June 2021
·Payroll Activity Summaries -nominee 2019, 2020 and 2021 financial years
·Nominee’s Notice of Assessment 2019,2020 and 2021
·Superannuation account statements 30 June 2020 and 2021
·Bank Statements 23 January 2020 to 23 July 2021
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
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 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.
Background
The applicant operates a retail furniture business operating retail stores at various regional and metropolitan locations in Victoria and NSW. Information before the Tribunal shows that the business was established in 2012.
On 15 June 2017, the applicant lodged an application for an employer nomination approval for the position/occupation of Retail Buyer (ANZSCO 639211), under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $55,000 per annum.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it. This evidence includes the oral evidence received at the hearing by the applicant and written submissions from applicant dated 30 July 2021 and 11 April 2022. The Tribunal also notes the applicant’s submission to Regional Development Victoria, Bendigo attesting to the need for the position.
At the hearing, the applicant told the Tribunal, the need to employ a Retail Buyer is essential to the operational and business needs of the applicant’s operations as a furniture retailer, operating in regional and metropolitan locations in Victoria and NSW. The position is required to service Victorian regional store locations.
The Tribunal is satisfied on the information before it that the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r. 5.19(4)(a)(ii) is met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal accepts on the evidence before it that the applicant owns and operates a retail furniture business, with stores located in Victoria and New South Wales. Based on the material provided to the Tribunal, including financial statements, BAS returns, ASIC details, payroll information, business bank statements, sales catalogue and commercial lease agreement, the Tribunal is satisfied the applicant is actively and lawfully operating a business providing furniture retail services in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
In considering whether the nominee will be employed in the nominated position for at least two years, the Tribunal has considered the financial capacity of the business to pay the nominated full-time salary of $55,000 per annum to the nominee for at least two years. In making its assessment, the Tribunal has afforded weight to information before it, including the applicant’s financial statements, BAS returns, bank statements and payroll records, which show the applicant has met payroll and operating costs.
The Tribunal notes that the applicant’s financial statements show that the business has reported substantial revenue with proportionally aligned profit. The submitted BAS returns, and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.
The Tribunal has also afforded consideration to evidence supporting the nominee was continuously employed by the applicant from March 2013 to July 2021. The nominee’s bank account statements, PAYG’s/Income statements and superannuation statements support the nominee has received regular remuneration plus superannuation. The Tribunal notes that the nominee due to visa conditions worked predominantly on a part time basis.
Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to maintain the nominee’s full-time employment as they have done since the nominee commenced part time employment with the applicant in March 2013.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the nominee’s employment agreement dated 28 March 2022, which sets out the nominee’s terms and conditions of employment. The contract indicates that the period of employment is ongoing, commencing subject to the grant of the nominee’s ‘Employer Nomination Scheme Visa’. The contract stipulates the base salary is $55,000 per annum exclusive of superannuation with hours of work 40 hours per week. There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment agreement dated 28 March 2022 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The employment agreement dated 28 March 2022, sets out the terms and conditions of employment and indicate that the nominee’s salary will be $55,000 per annum and hours of work 40 hours per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal has received copies of the nominee’s payroll activity statements and bank statements confirming that the nominee has received regular payment of remuneration from the applicant. Superannuation information provided to the Tribunal, support that the nominee received superannuation payments. The Tribunal is therefore satisfied based on the evidence, that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
ADVERSE INFORMATION – Invitation to comment
On 5 May 2022, the Tribunal wrote to the applicant under s 359A of the Migration Act 1958 The invitation sought comments from the applicant in regard to Department of Home Affairs records showing that that the Department received allegations on 20 October 2014 that Mr Yousuf Makini [sic] employed students in contravention of their work rights by employing them full time and in excess of 50 hours per week.
Regulation 5.19(4)(f)(i) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator. The Tribunal advised the applicant that if the Tribunal relies on this information, it may find that the applicant does not satisfy the requirements of r.5.19(4) and consequently the decision under review would be affirmed.

The Tribunal sought the applicant’s response by 19 May 2022. The applicant responded by way of a written submission from the representative dated 19 May 2022, submitting as extracted below:
‘….. Incorrect Application of R.5.19(4)(f)(i)
It is firstly noted that Mr Mikini [sic] is not a sponsor and or nominator for the purposes of Reg1.13 A (a) and (b).
In relation to Reg 1.13 A (2), as per instructions we have received, it is noted that Mr Mikini [sic]:
(a) has not contravened a law of the Commonwealth, a State or a Territory;
(b) is not under any investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law stated in a); or
(c) has not been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law;
(d) has never become insolvent (within the meaning of section 95A of the Corporations Act 2001);
(e) has never given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.
It must be made very clear that the Department receiving an allegation against a person is not considered adverse information pursuant to the Regulations.
Furthermore, especially in the context where it seems that the Department has not put such a vague Allegation to Mr Yousuf Mikini [sic] first for comment, it would not be procedurally fair or appropriate for the Tribunal to provide such an Allegation for comment in relation to the application before the Tribunal as there is no nexus.
Conclusion
The Allegation does not fit within the meaning of adverse information as per Reg
[1] Prepared and transcribed as submitted by representative.
1.13 A and therefore cannot be used by the Tribunal to affirm the Department decision under Reg.5.19(4)(f)(i).’[1]
In consideration of whether the information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B as at the time the application was lodged on 15 June 2017. [2]
[2] There were changes to the definitions of ‘adverse information’ and ‘associated with’ on 18 March 2018. The new definitions only apply to applications made on or after 18 March 2018: cl 6703 of sch 13 to the Regulations.
Adverse information as defined in reg 1.13A (previously reg 2.57(3)) includes information that the person:
·has been found guilty by a court, of an offence under a Commonwealth, State or Territory law; or
·has, to the satisfaction of a ‘competent authority’,[3] acted in contravention of a Commonwealth, State or Territory law; or
·has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or
·has become insolvent within the meaning of ss 5(2) and (3) of the Bankruptcy Act 1966 (Cth) and s 95A of the Corporations Act 2001 (Cth).[4]
[3] ‘Competent Authority’ is defined as a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened: reg 2.57(1) as inserted by SLI 2009, No 115.
[4] reg 1.13A(1).
The law which has been contravened, or has possibly been contravened as referred to in the first four dot points above, must relate to one or more of the following: discrimination, immigration, industrial relations, occupational health and safety, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.[5] In addition, the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years.[6] A ‘contravention’ involves doing that which is forbidden by law or failing do to that which is required by law to be done.[7]
[5] reg 1.13A(2).
[6] reg 1.13A(3).
[7] Keay v MICMSMA [2022] FedCFamC2G 223 at [18]. Although Keay concerned reg 1.13A as in force after 18 March 2018, the reasoning appears applicable to this context.
The above list is not exhaustive. In Sri Guru Gobind Singh Transport Pty Ltd v MICMSMA [2022] FCA 118, the Court held that the reference to ‘any adverse information’ in reg 1.13A(1) supported a broad construction of the phrase ‘and includes’ in the legislative context and made it clear that the examples of adverse information in the definition do not limit its meaning.
The Tribunal has considered whether the allegations fall within the definition of ‘adverse information’ and notes that there is no evidence before the Tribunal at the time of this decision, to suggest that there is adverse information known to Immigration within the meaning provided in r.1.13A and r1.13B.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements 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 under the relevant legislative instrument, 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 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
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position, are located in Kangaroo Flat, Victoria postcode 3555, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a paid employee to work in the position of Retail Buyer under the occupation Retail Buyer (ANZSCO 639211).
The evidence before the Tribunal indicates the applicant operates a furniture retail business with over ten stores located in Victoria and NSW. The applicant has provided oral and written submissions to the Tribunal detailing the need for the position, in addition to position descriptions and job advertisements indicating the objective of the role and the contribution of the position to the applicant’s business.
There are aspects of this matter that attract some caution in so far as, at the hearing the Tribunal raised with the applicant that it must be satisfied that there is evidence that supports the genuine need for this position, as opposed to the position being a means to facilitate the grant of a visa for Mr. Khalid Makani.
At the hearing the applicant was open about his relationship with the nominee in so far as he is a son of a cousin. However, notwithstanding the concerns of the Tribunal, the Tribunal has based its findings on the totality of the evidence before it, affording weighting to the applicant’s evidence re: current skills shortages in Regional Australia and evidence supporting the business need for the nominated position.
Given the evidence before it, the Tribunal is satisfied on balance that the material and evidence provided by the applicant, supports there is a genuine need for the nominator (applicant) to employ a paid employee to work in the position under the nominator’s direct control. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications.
The Tribunal is satisfied on the evidence before it, that there is a business need for the position which supports the genuine need for the nominator (applicant) to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence at the hearing that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position and the challenges the applicant has faced in attracting and retaining staff to work in a regional location. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally.
On the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations. The delegate formed the view that the tasks to be performed in the position did not correspond to the tasks of a Retail Buyer as specified by the Minister in an instrument in writing for sub-subparagraph 5.19(4)(h)(ii)(D).
The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the tasks and duties of the position.
The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application. The Tribunal has had the opportunity to discuss with the applicant and the nominee at the hearing, the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO.
For nominations made on or after 1 July 2015, regulation 5.19(4)(h)(ii)(D) requires the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument.[8] This requires a qualitative analysis of whether the position is what it really purports to be in a practical sense, which is more than a line by line comparison of the tasks for example in the employment contract and the tasks of ANZSCO description.[9] It is a question of fact and the weight the decision maker gives to various considerations and evidence is a matter for it.[10]
[8] reg 5.19(4)(h)(ii)(D) as amended by SLI 2015, No 103.
[9] Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758 at [34]–[37]. The Court accepted that the qualitative analysis required for reg 2.72(10)(f) (whether the position associated with the nominated occupation is genuine) endorsed in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 was applicable to reg 5.19(4)(h)(ii)(D) assessment of whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument.
[10] In Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5, the Court found that it was open for the Tribunal to consider not only the documentary material but the oral evidence at hearing concerning the nominee’s role, and the Tribunal was not bound to treat the description in the contract as definitive but was open to take preference for one evidence over another (at [66]-[69]).
In their decision of 14 March 2019, the delegate noted the following;
‘ … Whilst I acknowledge that the applicant has nominated Retail Buyer (ANZSCO 639211)
as an occupation which is on the instrument in writing, the applicant has not provided
documentation, other than a general statement alluding to the nature of the position, to
support their claims that the duties of the nominated position match those the occupation.
In the absence of any such documentation, I find that the applicant does not meet the
requirements of sub-subregulation 5.19(4)(h)(ii)(D)…’
The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 639211 for the occupation Retail Buyer and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided comprehensive description of the daily duties and tasks carried out by the nominee. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the business and operational requirements, and how the tasks of a Retail Buyer (as undertaken in the nominated position) are relevant to meeting these requirements.
Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Retail Buyer. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
The position of Retail Buyer (ANZSCO 639211) is referred to in ANZSCO as a skill level 3 position. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. Department records show that the nominee holds a Diploma of Leadership and Management, and Certificate IV in Frontline Management. Evidence before the Tribunal suggests the nominee at time of lodging his application with the Department was enrolled in Bachelor of Business Management with Cambridge International College. The nominee has obtained approximately eight years’ experience as a Retail Buyer working for the nominator.
Having considered the evidence attesting to the nominee’s experience and qualifications, the Tribunal is satisfied that he is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.
The Tribunal has before it, advice dated 31 January 2018 from the relevant RCB, Regional Development Victoria, Bendigo (DEDJTR), indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
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.
Karen McNamara
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).