Frontier Leadership Pty Ltd (Migration)

Frontier Leadership Pty Ltd (Migration) [2023] AATA 3080 (8 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Frontier Leadership Pty Ltd
REPRESENTATIVE:  Mr Wenwei Zheng (MARN: 1570029)
CASE NUMBER:  1932387
HOME AFFAIRS REFERENCE(S):          BCC2019/4351304
MEMBER:Alison Mercer
DATE:8 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 8 September 2023 at 1:39pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – marketing specialist – genuine need for position and no suitable local candidate – owners seeking to increase recruitment of overseas students directly – post-COVID increases in business activities and revenue – nominee identified from talent pool of previous applicants – advertising for position since nomination application refused and previous employee resigned – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(9)(c), (d)

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 25 October 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Frontier Leadership Pty Ltd, applied for approval of its nominated position of Marketing Specialist on 31 August 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(c) and (e) of the Regulations because the delegate was not satisfied that the applicant had genuinely demonstrated that there was no suitable local candidate for the nominated position, nor that the applicant had a genuine need for the nominated position within its business.
The Tribunal received a review application on 14 November 2019. It was lodged on behalf of the applicant by its director, Mr Yicheng Ni, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Ni appointed a registered migration agent, Mr Wenwei Zheng, as the applicant’s representative and authorised recipient for correspondence.
On 20 June 2023, the Tribunal wrote to Mr Ni via the agent to invite him, pursuant to s.359(2) of the Act, to provide current and updated information that demonstrated that the applicant met all of the relevant criteria in r.5.19 (including, but not limited to, the criteria that the delegate found was not met). The Tribunal provided examples of the kind of information that would assist it in its assessment. It also advised Mr Ni that if he failed to provide the requested information (or failed to request an extension of time to do so) by 4 July 2023, the applicant would lose its entitlement to have a person appear before the Tribunal at a hearing, and that the Tribunal might proceed to make its decision without taking any further steps to obtain the requested information.
On 4 July 2023, the Tribunal received the following documents from the applicant:
·Business Activity Statements (BAS) for the financial year 2021/2022 and from July 2022 to December 2022;
·Australian Securities and Investments Commission (ASIC) registration for the applicant;
·list of education agent partners of the applicant;
·employment contract between the applicant and the nominee dated 4 July 2023;
·letter from the applicant setting out how the nominee’s salary was determined, dated 3 July 2023;
·job description;
·payroll activity statements for financial years 2020/2021 and 2021/2022;
·statement from the director of the applicant attesting to the genuineness of the nominated position, dated 4 July 2023;
·list of the applicant’s employees;
·organisational chart;
·email dated 1 March 2023 indicating that employee Teresa Chan is finishing up;
·financial statement for the applicant for 2021/2022;
·evidence of advertisement of the nominated position;
·profit and loss statement for period 1 July 2022 to 31 March 2023; and
·advice from the Regional Certifying Body (RCB) dated 12 November 2019.
On 28 July 2023, the Tribunal wrote to Mr Ni via the agent to invite him to attend a hearing on behalf of the applicant at a hearing to be conducted by videoconference on 17 August 2023. The Tribunal requested that any further submissions and/or documents in support of the case be provided to the Tribunal by 10 August 2017.
On 10 August 2023, the Tribunal received the following from the applicant:
·legal submissions;
·change of contact details for the applicant;
·lease agreements for the applicant; and
·email dated 6 July 2023 from Migration Tasmania to the applicant’s agent advising that it does not certify nominations for subclass 187 visas, and that the applicant should check with the Department as to the relevant Regional Certifying Body (RBC) for these purposes.
The agent made the following legal submissions:
…
Dear Member,
1. We act on behalf of Frontier Leadership Pty Ltd to provide this submission and supporting documents with respect to the merits review application of a nomination refusal under Subclass 187 Direct Entry Stream.
Review Applicant:
Legal Name: Frontier Leadership Pty Ltd
ABN: 71141901975
Principle Place of Business: 5/188 Collins St, Hobart TAS 7000
Contact Person: Mr. Yicheng NI
Position of Contact Person: Managing Director
Date of Nomination Lodged: 31/08/2019
Date of Nomination Refused: 25/10/2019
Nominated Position: Marketing Specialist - (ANZSCO Code: 225113)
Base Salary Offered: $80,000
Nominee(s):
Xiao LIANG (Nominee)
Shihan LIANG (Dependent Child of Nominee)
Background Summary
2. The review applicant, founded in 2010, is a prominent organization that specializes in vocational education training. They offer a comprehensive range of programs, including Certificate, Diploma, and Advanced Diploma courses, catering to both local and international students. The organization's main focus is to provide training and development opportunities that enable students to acquire the qualifications and skills necessary to meet the current and future skill requirements of Australia.
3. The review applicant is currently operating at the following campus:
• 188 Collins Street, Hobart, TAS 7000 (Main Campus)
• 4/445 Upper Edward Street, Spring Hill, QLD 4000
• 1/19 Aplin Street, Cairns, QLD 4870, and
• 3/20 King William Street, Adelaide, SA 5000
4. The review applicant applied for approval of the nomination of a position (Marketing Specialist) in Australia under r 5.19 f the Migration Regulation 1994 (the Regulation) on 31 August 2019 seeking to satisfy the criteria in Direct Entry Nomination Stream.
5. The nominated position of a full-time Marketing Specialist aligns well with the scope of business activities and is highly relevant to the nature of the business. According to the applicant, within the education industry, a marketing specialist is a common position and plays a vital role in efficiently enhancing the institution's reputation and competitiveness in the education sector, which is of utmost importance to the business.
6. The position is an existing position that was undergoing recruitment in 2019 when the business performance had steady growth. As the review applicant’s main campus is located in a regional area – Tasmania, it was difficult to attract and retain qualified professionals such as Marketing Specialist, and the review applicant had advised the position without success. It identified the nominee Ms Xiao LIANG as the most suitable candidate to perform duties as a full-time Marketing Specialist after various recruitment processes and interviewing a number of candidates.
7. The review applicant also provided positive RCB (Regional Certifying Body) advice, which confirmed that the review applicant has provided sufficient evidence to demonstrate that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident residing in the local area where the position is located.
8. The review applicant submits the nominee failed to fulfil the position due to the refusal decision made by the Department and considering the business operation needs, it continues to seek suitable candidates via business and networks and sourced Abby Huang and then Teresa Chan to occupy the position. The position became vacant when Teresa Chan departed from the review applicant on 31 March 2023.
9. According to the review applicant, immediately after it received the resignation notice from Teresa, the review applicant advised the position via the website but without success due to the regional workforce shortage. Later the review applicant reached Ms. Xiao LIANG, a previous successful candidate in the business talent database, recognizing her past achievements and considering her currency, availability and interest in the position, the board made the decision to recruit and nominate her as the Marketing Specialist.
10. The review applicant submits that there is an urgent requirement for the nominated position to adjust their market strategy. Firstly, the applicant and the industry have experienced a significant market downturn as a result of the COVID-19 pandemic. However, recent trends indicate a positive shift, with a 16% increase in vocational education and training student enrolment from 2022 to 2023. This growth presents an opportunity for the applicant to adjust their market strategy and seize the chance to remain competitive in the market.
11. Additionally, the board of the review applicant acknowledges the need to identify potential market opportunities. They require the expertise of the nominated position to provide guidance and advice on the development, coordination, and implementation of plans for potential transnational education arrangements. This proactive approach will allow the applicant to explore and capitalise on international education opportunities, thereby fostering growth and success in a rapidly evolving global education landscape. And therefore, the review applicant needs to have a full-time marketing specialist.
12. The review applicant has updated the employment contract with the nominee and offered the nominee an increased annum base salary rate from $60,000 to $80,000. The commencement date of this updated contract is upon to the date of the Subclass 187 visa being granted.
13. As per the enclosed "Nomination-Employment Contract-2023," the nominee will be hired by the review applicant for a full-time position with a minimum duration of 2 years. The terms and conditions of the contract offered the nominee the possibility of extending the employment period.
14. The terms and conditions of employment for the nominated position will be equal to those provided to an Australian citizen or an Australian permanent resident performing equivalent work at the same workplace and location. The review applicant ensures that there will be no discrimination in terms of employment benefits and conditions based on the nominee's citizenship or residency status.
15. Based on the latest financial statement, the review applicant recorded a total income of $4,849,309 in the fiscal year 2022. Additionally, they achieved a net profit of $155,459 during the same period. These figures demonstrate that the review applicant has generated a substantial revenue stream, enabling them to financially support the nominee and provide a salary at a market rate for a minimum duration of two years.
Claims and Evidence
16. This submission is aimed to demonstrate that the applicant meets the Reg 5.19 Approval of nominated positions (employer nomination) under the Direct Entry Nomination Regional Sponsored Migration Scheme set out in Reg 5.19(4), 5.19(9) and 5.19(12) stack 30/08/2019 - 30/09/2019.
The application is compliant: Reg. 5.19(4)(a)
17. Reg 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.2245AR(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.
18. In this case, the nomination application form lodged on 31 August 2019 identifies a nominee, Ms. Xiao LIANG, the nominated occupation of Marketing Specialist, a paid position. The position description and information in the application form that the nominated position is under the direct control of the applicant.
19. Accordingly, the requirement in Reg. 5.19(4)(a) of the Regulations is met.
Nominator is actively and lawfully operating a business in Australia: Reg.5.19(4)(b)
20. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
21. The reviewing applicant is a registered international course provider that was acquired in 2018. The business holds an ACN of 141 901 975 and an ABN of 71 141 901 975, which is actively, lawfully and directly operating a business in Australia.
22. Accordingly, the requirement in Reg. 5.19(4)(b) of the Regulations is met.
Evidence provided:
• ASIC Record
• ABN Details
• Nomination-BAS 2021-September-AS-FRONTIERLEADERSHIPPTYLTD
• Nomination-BAS 2021-December-AS-FRONTIERLEADERSHIPPTYLTD
• Nomination-BAS 2022-March-AS-FRONTIERLEADERSHIPPTYLTD
• Nomination-BAS 2022-June-AS-FRONTIERLEADERSHIPPTYLTD
• Nomination-BAS 2022-September-AS-FRONTIERLEADERSHIPPTYLTD
• Nomination-BAS 2022-December-AS-FRONTIERLEADERSHIPPTYLTD
Registration requirement: Reg. 5.19(4)(c)
23. Reg. 5.19(4)(c) requires the nominee holds relevant licence or registration.
24. In the current case the nominated position is Marketing Specialist and there is no registration or licence requirement to perform such job in Tasmania or Australia.
25. Accordingly, the requirement in Reg. 5.19(4)(c) of the Regulations is not applicable.
Satisfactory compliance with workplace relations laws: Reg. 5.19(4)(d)
26. Reg. 5.19(4)(d) 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.
27. In the present case there is no evidence to show the review applicant has any non-compliance record or any other breaches of the workplace relations laws of the Commonwealth or by states by the applicant.
28. Accordingly, the requirement in Reg5.19(4)(d) is met.
No debt due in relation to 140ZO of the Act: 5.19(4)(da)
29. Reg. 5.19(4)(da) requires the applicant has no debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty).
30. In the present case there is no evidence to show the review applicant has any debts that are mentioned in section 140ZO of the Act.
31. Accordingly, the requirement in Reg5.19(4)(da) is met.
Requirements for Temporary Residence Transition stream: Reg. 5.19(4)(e)
32. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream, Reg5.19(4)(e) is not applicable.
Requirements for Direct Entry stream: Reg. 5.19(4)(f)
33. Reg. 5.19(4)(d) requires that the applicant satisfy the requirements set out in Reg 5.19(9), which will discuss in paragraphs 35-69.
Requirements for Labour Agreement stream: Reg. 5.19(4)(g)
34. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream, Reg5.19(4)(g) is not applicable.
The nominator is actively and lawfully operating a business in Australia: Reg. 5.19(9)(a)
35. Reg. 5.19(9)(a) requires that the applicant is actively, lawfully and directly operating a business in Australia. In the present case, please refer to paragraphs 20-22.
36. Accordingly, the requirement in Reg. 5.19 (9)(a) is met.
Hiring of labour business activities: Reg. 5.19(9)(b)
37. Reg. 5.19(9)(b) set outs the requirement for business activities including activities related to the hiring of labour to other unrelated businesses.
38. In present case, the business activities are not related to hiring of labour to other unrelated businesses Accordingly, the requirement in Reg. 5.19 (9)(b) is not applicable.
Identifying the need of the applicant: Reg. 5.19(9)(c)
39. Reg. 5.19(9)(c) requires the need for the identified person to be employed in the position, under the direct control of the nominator is identified in the application.
40. In present case, the applicant identified Ms Xiao LIANG as the nominee to be employed as the Marketing Specialist under the direct control of Frontier Leadership Pty Ltd.
41. Accordingly, the requirement in Reg. 5.19 (9)(c) is met.
Evidence provided:
• Nomination-Employment Contract-2023
• Nomination-Organisational Chart -2023
The genuine need of the position: Reg. 5.19(9) (d)
42. Reg. 5.19(9)(d) requires there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
43. In the present case, to demonstrate the genuineness of the nominated position, the applicant provides the Tribunal with a detailed “Genuine Position Statement”, including the nature of the business, the financial situation of the business, the staff composition of the business, position details and job description of the position, as well as the great relevance between nominated position and the business context.
44. To be specific, the nominated position is crucial for the growth and development of the review applicant’s business. It holds the responsibility of establishing a strong reputation,
implementing effective marketing strategies, and reaching target customers within the education sector. It is common and essential in vocational and higher education sectors all over Australia such as the University of Sydney, University of Tasmania, Griffith University, Academies Australiasia Polytechinic, and Australiasia International School.
45. The reviewing applicant emphasizes in the “Genuine Position Statement” that there is an urgent requirement for the nominated position due to several factors.
46. Firstly, the applicant and the industry have experienced a significant market downturn as a result of the COVID-19 pandemic. However, recent trends indicate a positive shift, with a 16% increase in vocational education and training student enrolment from 2022 to 2023. This growth presents an opportunity for the applicant to adjust their market strategy and seize the chance to remain competitive in the market.
47. Additionally, the board of the applicant organisation acknowledges the need to identify potential market opportunities. They require the expertise of the nominated position to provide guidance and advice on the development, coordination, and implementation of plans for potential transnational education arrangements. This proactive approach will allow the applicant to explore and capitalise on international education opportunities, thereby fostering growth and success in a rapidly evolving global education landscape.
48. The applicant submits that the nominee will work at Hobart Campus (Hobart 188 Collins Street, Hobart, TAS 7000) The Hobart Campus is the main campus of the business and holds significant importance in terms of turnover contribution. It serves as the central hub where all operational functions are located, including finance, IT, academic, and sales and marketing departments.
49. The following figure shows the income segment for Frontier Education from July 2022 to March 2023, which indicates Hobart Campus contributes 60.1% of the total income.
50. Therefore, there is a genuine need of a full-time Marketing Specialist for the review applicant and accordingly, the requirement in Reg. 5.19 (9)(d) is met.
Evidence provided:
• Nomination-Genuine Position Statement
• Nomination-Job Description
• Nomination-Agent List
Nomination-Profit-and-Loss for the 9 months ended 31 March 2023
Full-time position for at least 2 years: Reg. 5.19(9)(e)
51. Reg. 5.19(9)(e) requires the nominee to be employed in the nominated position for at least 2 years on a full-time basis.
52. The applicant provided the Tribunal with a copy of the updated “Employment Contract” dated 04/07/2023. Item 4 on page 11 indicates that the contract is fixed for a period of 2 years.
53. Accordingly, the requirement in Reg. 5.19(9)(e) is met.
Evidence provided:
• Nomination-Employment Contract-2023
Possibility of extending the employment: Reg. 5.19(9) (f)
54. Reg. 5.19(9)(f) requires the terms and conditions of the nominee’s employment do not expressly exclude the possibility of an extension.
55. The applicant provided the Tribunal with a copy of the updated “Employment Contract” dated 04/07/2023. Item 4 on page 11 indicates that the employment is with the option to extend.
56. Accordingly, the requirement in Reg. 5.19(9)(f) is met.
Evidence provided:
• Nomination-Employment Contract-2023
Financial Capacity of the applicant: Reg. 5.19(9) (g)
57. Reg. 5.19(9)(g) requires the nominator to be financially capable to meet its employment obligations in regard to the nominee for at least two years.
58. In the present case, in accordance with the latest Financial Statement, the trading income in 2022 fiscal year was $4,849,309 and the net profit reached $155,459. The net asset at the end of 2022 fiscal year was $385,558. These financial figures demonstrate that the review applicant has reached a level of profitability that enables the business to allocate resources toward hiring a suitable candidate for an existing position.
59. Accordingly, the requirement in Reg 5.19(9)(g) are met.
Evidence provided:
• Nomination-Financial Statement FY2021FY2022
• Nomination-Payroll Activity Summary FE - FY22
• Nomination-Payroll Activity Summary FE - FY21
Annual earnings: Reg. 5.19(9) (h)
60. Reg. 5.19(9)(h) provides that the requirements set out in sub-regulation 2.72(15) must be met for the nomination to be approved, subject to references to ‘nominee’ and ‘person’ being read as ‘identified person’ and ‘nominator’ as appropriate in the PESE nomination
context.
61. Reg.2.72(15) contains several requirements which must be met and can be briefly summarised as followed:
• the Annual Market Salary Rate (AMSR) for the nominated occupation has been determined in accordance with the relevant legislative instrument, unless it is reasonable to disregard this criterion.
• the AMSR, excluding any non-monetary benefits, is not less than the Temporary Skilled Migration Income Threshold (TSMIT).
• the nominee’s GAE for the nominated occupation will not be less than the AMSR.
62. In the present case, there is no Australian employee performing equivalent work in the same workplace at the same location. In considering the GAE that would be provided to an equivalent Australian employee, the review applicant provides a salary determination letter indicating the nominee will be paid an appropriate salary package at market rates that is an annual salary of $80,000 plus superannuation.
63. The nominee’s salary is reasonably determined by the market salary rate for the position in regional areas with reference to:
• Marketing Specialist Median salary $78,000 in Hobart Tasmania from a recent Payscale search (conducted in July 2023).
• Marketing Specialist Job advertisement on indeed in regional area indication the salary range is $65,000 to $85,000.
• Marketing Manager Job advertisement on seek in regional area indication the salary range is $85,000 to $95,000.
Therefore, the proposed salary of $80,000 offered to the nominee appears to be at the median point of the range suggested by Payscale, and consistent with the job advertised on the Seek and Indeed, and it is met the requirements set out in reg 2.72(15).
64. Accordingly, the requirement in Reg 5.19(9)(h) are met.
Evidence provided:
• Nomination-Job Description
• Nomination-Salary Determination Letter
No less favourable terms and condition of employment: Reg. 5.19(9) (i)
65. Reg. 5.19(9)(i) 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.
66. In the present case, there is no Australian employee performing equivalent work in the same workplace at the same location. In considering the terms and conditions of employment the salary is discussed in paragraph 62-63, and in relation to the provisions in the nominee’s employment contract signed on 4 July 2023 to leave entitlements and termination provisions, which are consistent with the National Employment Standards overseen by the Fair Work Ombudsman. And therefore, 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.
67. Accordingly, the requirement in Reg. 5.19(9)(i) is met.
Evidence provided:
• Nomination-Employment Contract-2023
Requirements for Regional Sponsored Migration Scheme) visa in the Direct Entry stream: Reg. 5.19(9) (j)
68. Reg. 5.19(9)(j) requires the applicant meet the requirements set out in sub-regulation (10) or (12), in the present case, the applicant is seeking to meet sub-regulation (12), which will be explained in the following paragraphs to prove the applicant meet 5.19(9)(j).
Position location: 5.19(12) (a)
69. Reg. 5.19(12)(a) requires the position is located in regional Australia.
70. In the present case, the nominated position of a full-time Marketing Specialist is located at Hobart TAS 7000. In accordance with the legislative instrument IMMI 18/073, the entire Tasmania qualifies as the regional area. Please also refer to paragraphs 48 &49 for the reason the for position at Hobart campus.
71. Accordingly, the requirement in Reg. 5.19(12)(a) is met.
Evidence provided:
• Nomination-Lease Agreement
• Nomination-Employee List Updated
Business operation location: Reg. 5.19(12) (b)
72. Reg. 5.19(12)(b) requires business operated by the nominator is located in regional Australia and where the nominee performed the job duties.
73. In the present case, the applicant main campus is located 188 Collins Street, Hobart, TAS 7000.
74. Accordingly, the requirement in Reg. 5.19(12)(a) is met.
Evidence provided:
• Nomination-Lease Agreement
Position cannot be filled by an Australian citizen or permanent resident: Reg. 5.19(12) (c)
75. Reg. 5.19(12)(c) requires the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned.
76. According to the applicant, they conducted the following recruitment activities.
a. Word of mouth
b. Employee referrals
c. Attempts of direct advertising via Seek
d. Business Recruitment Database
77. The review applicant initially sought to recruit a marketing specialist through word of
mouth and employee referrals, considering it the most effective and credible approach. They commenced this process in July 2019 but were unable to identify any Australian citizen or Australian permanent resident currently residing in or willing to relocate to Hobart for the position.
78. Throughout the process, the review applicant initially identified the nominee as a suitable candidate, but the nominee was unable to fulfil the position because of the nomination refusal decision. As the position is essential to fulfilling its operational needs, the applicant continued to seek suitable candidates via business and personal networks and sourced Abby Huang and then Teresa CHAN. The position became vacant since Teresa’s resignation in March 2023, and due to the regional workforce shortage, the applicant is unable to identify any suitable person via direct advertisement. The applicant ultimately selected the nominee from the business talent database, taking into account her past achievements and considering her current qualifications, availability, and enthusiasm for the position.
79. We respectfully submit that the review applicant has demonstrated that genuine attempts was made by the nominator to advertise for the position of the local area. And therefore proved the position cannot be filled by the Australian citizen or Australian permanent resident who is living in, or would move to, the local area concerned.
80. The original application was submitted to the department in August 2019. Prior to the application submission, the Regional Certifying Body, Department of State Growth Tasmania, had provided a positive recommendation in support of this nomination.
81. In accordance with the RCB’s advice dated 12 November 2019, the review applicant had demonstrated the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area where the nominated position exists.
82. PAM 4.6.4.7 Consideration of the advice provided by the RCB as of 30/09/2019 specified the decision maker needs to consider and should generally place weight on the RCB’s views to whether the position can be filled locally by virtue of their location, local knowledge, and experience.
83. Decision maker should also note that there is no legislated requirement for labour marketing testing under Regional Sponsored Migration Scheme, though the review applicant still made recruitment efforts.
84. Accordingly, the requirement in Reg. 5.19(12)(c) is met.
Evidence provided:
• Nomination-Recruitment Activity-2023
• Recommended, Frontier Leadership Pty Ltd trading as Frontier Education, Xiao LIANG, EGONE6TWK8
• Nomination-Resignation Notice-Teresa CHAN
Tasks of the position: Reg. 5.19(12) (d) and 5.19(12)(e)
85. Reg5.19(12)(d) requires the tasks to be performed in the position will be performed in
Australia and correspond to those of an occupation specified by the Minister.
86. The tasks of the position correspond to those of an occupation at the ANZSCO 225113. The nominated position is responsible for the duties include but not limited to marketing strategies and campaigns to reach target markets, creating student awareness and effectively promoting the course and all other duties specifies in the Nomination-Job Description. The job duties correspond with the ANZSCO occupation of Marketing Specialist.
87. Accordingly, the requirement in Reg. 5.19(12)(d) and 5.19(12)(e) is met.
Evidence provided:
• Nomination-Job Description
RCB advice: Reg. 5.19(12) (f) and Reg. 5.19(12)(g)
88. Reg5.19(12)(f) and 5.19(12)(g) requires the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister.
89. IMMI 18/037 specifies the Department of State Growth is the RCB in Tasmania and the applicant received positive RCB advice about the matters in regs 5.19(12)(f) and 5.19(12)(g) please refer to para 77 to 78 for more detail.
90. The RCB was provided with 1404 form and was satisfied: that there is a genuine need for the nominator to employ the nominee; that the position could not be filled locally by an Australian permanent resident or citizen; and that the terms and conditions of the employment will be no less favourable than that which would be provided to an Australian citizen or permanent resident.
91. The Department of State Growth Tasmania advice they are no longer issue RCB in relation to 187 nomination application, and the letter issued 12 November 2019 should be taken in to consideration.
Evidence provided:
• Recommended, Frontier Leadership Pty Ltd trading as Frontier Education, Xiao LIANG, EGONE6TWK8
• Advice about RCB from Department of State Growth
Conclusion
92. Based on the above discussion, we respectfully submit that at the time of the review decision is made, the review applicant has met Reg. 5.19(4), 5.19(9) and 5.19(12) of the Regulations.
93. Accordingly, we respectfully submit that the decision under review should be set aside and be substituted with a decision approving the nomination.
…

The following documents were provided as attachments:
·IMMI Refusal of Nomination Notification;
·applicant’s ASIC record and ABN Details;
·job description;
·genuine position statement;
·employment contract for nominee – 2023;
·salary determination letter;
·applicant’s employee list (updated);
·organisational chart – 2023;
·applicant’s agent list;
·applicant’s financial statements FY2021, FY2022;
·recruitment activity report for the applicant -2023;
·profit-and-loss for the applicant for the 9 months ended 31 March 2023;
·resignation notice -Teresa Chan;
·BAS 2021-September-December-2021; 2022-March- December;
·applicant’s payroll activity summary FE - FY22, and FE - FY21;
·lease agreements for the new and old Hobart offices; and
·advice from the relevant RCB, the Tasmanian Department of State Growth.
On behalf of the applicant and Mr Ni, Ms Ye Wang appeared before the Tribunal on 17 August 2023 by videoconference to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, which is based in Tasmania. 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 videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
In response to the Tribunal’s query, Ms Wang explained that she and her now ex-husband, Mr Ni, took over the business in 2018. Since that time, she had been actively involved in its operations. Since she and Mr Ni divorced, she had continued to be actively involved in managing the business, but as a contractor. As she was not a payroll employee, she was not included on the most recent organisational chart provided to the Tribunal, but she remained the applicant company’s public officer for the purposes of liaising with education agencies and Australian regulatory authorities (such as the Australian Skills Quality Authority, or ASQA, the national regulator for the Vocational Education and Training (VET) sector in Australia). Ms Wang said that Mr Ni was unable to attend the hearing due to family commitments and had therefore authorised her to speak on the applicant company’s behalf at the hearing via the power of attorney provided to the Tribunal on 10 August 2023.
Ms Wang told the Tribunal that when she and Mr Ni took over the applicant’s business in 2018, the previous owner and Chief Executive Officer (CEO) undertook most of the marketing activities, which were mostly to education agencies in various overseas countries. Ms Wang said that she and Mr Ni were determined to increase the business’ turnover and student numbers, particularly overseas students. She told the Tribunal that they felt they needed better marketing to increase recruitment of overseas students. Their focus was South East Asia.
In response to the Tribunal’s query, Ms Wang distinguished the existing Sales and Marketing Manager position occupied by Molly Wu from the nominated position to be taken by the nominee. She noted that the Sales and Marketing Manager’s focus was on maintaining good relationships with educational agents and agencies, and with the College’s existing students, while the nominated role of Marketing Specialist was focussed on identification and recruitment of overseas students, in particular from China and the Philippines. Ms Wang said that the applicant had determined that it wished to decrease its reliance on educational agencies to enrol overseas students, as these agencies generally charged commission fees of between 35% and 40%. Moreover, there were integrity concerns about many education agencies, especially in relation to the information they provided to the students, which was at times misleading. Ms Wang noted that the educational sector in Australia was highly regulated and if they were to move towards directly enrolling more overseas students, they needed an in-house Marketing Specialist with experience and good knowledge of the regulatory environment for overseas students, plus of the applicant’s courses and its likely cohorts of students. Ms Wang likened the nominated role to a business development manager, engaged to build the applicant’s ‘brand.’ She said that they needed a specialist who was able to utilise marketing online but also offline, such as by making presentations and representing the applicant overseas at educational promotional events and so on.
Ms Wang reiterated that the applicant wished to decrease its reliance on education agency intermediaries, and that she and Mr Ni had estimated that the applicant company could probably save in the vicinity of $1,000,000 per year if it paid fewer commissions to agencies, and that this would easily cover the costs of employing an in-house Marketing Specialist. She noted that this was important, as the costs of running the business had increased since COVID19. In response to the Tribunal’s query, Ms Wang said that in her experience, it was not uncommon for many Australian tertiary and vocational education providers to now have in-house marketing specialists, for the same reasons that the applicant had decided to. She further noted that the Marketing Specialist was responsible for the in-depth analysis of potential student cohorts, and then developing marketing strategies to target them and provide courses that were of most interest to them. Ms Wang confirmed that the applicant’s current courses focussed on business, hospitality and aged care, all of which were of interest to potential students in the Philippines and China. She further noted that Australian qualifications in these areas often gave students a competitive edge in their home countries.
In response to the Tribunal’s query, Ms Wang confirmed that the applicant still needs both roles (the Sales and Marketing Manager and the Marketing Specialist), as it still needs the Sales and Marketing Manager to manage the existing relationships with education agencies (even as the applicant utilised the Marketing Manager role to reduce its dependency on these agencies) as they currently supplied approximately 80% of the applicant’s international students. Ms Wang clarified that the Marketing Specialist role reports to the Sales and Marketing Manager and to the directors, but largely works independently. She further confirmed that the nominated position is based in the Hobart campus of the applicant, as this is its largest site, with approximately 50% of the student population.
Ms Wang told the Tribunal that the applicant advertised the nominated position after the Department rejected its nomination in 2019, via a combination of formal advertisements and word of mouth. She said that the applicant received approximately 30 responses but very few candidates had the required experience in the field of marketing and/or had detailed knowledge of the international educational sector. Ms Wang confirmed that both of the people that the applicant employed as Marketing Specialists since 2019 (Abbey Huang and Teresa Chan) were temporary residents. Ms Huang did not stay with the applicant very long, while Ms Chan was in the role for several years. However, she left in March 2023, and the role had been vacant since then, despite the applicant advertising it again after Ms Chan resigned. Ms Wang told the Tribunal that she travelled to China in April 2023, and met with the nominee to see if she was still interested and available for the role, and found that she was. Ms Wang said that the reason that the applicant had found the nominee the most suitable candidate in 2019 (and again in 2023) was due to her over 10 years of experience as a Marketing Specialist and the fact that she worked in the education sector in China, and thus had knowledge of the field, the likely students the applicant wished to recruit, and had networks and contacts with the Chinese education industry that would assist the applicant to break into that market and establish pathways or partnerships between the applicant and Chinese institutions. Ms Wang said that she was confident that the nominee would quickly become familiar with the Australian educational environment.
Ms Wang said that currently, active development of the marketing strategies for the applicant had been put on hold, but that both she and the nominee were keen for the nominee to be approved and relocate to Australia where the nominee could actively develop the applicant’s marketing presence, activities and strategies.
The applicant’s agent submitted that the applicant is shifting its business strategy from a B2B approach (sourcing students through intermediary education agencies overseas and in Australia) to try to source its students directly through its in-house marketing. He submitted that this would give the applicant more control over its student enrolments and cohort, and would save a considerable amount of money it currently paid in commissions to agencies. He further submitted that the nominated position was an existing position, but had been vacant since the end of March 2023 due to the resignation of the previous incumbent, Ms Chan. The agent submitted that the applicant had found a shortage of local candidates with the required skills and experience, and this had been exacerbated by the domestic and international travel restrictions caused by the COVID19 global pandemic.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is subclass 187, the application must be made before 16 November 2019.
The Tribunal has reviewed the material on the Department’s file and is satisfied that the applicant made the application on the appropriate form, and identified in that form the nominated position and occupation and the identity of the nominee and the subclass and stream of the nomination. The Tribunal is further satisfied that the nomination application contains the s.245AR certification required. The Tribunal notes that as this is a regional nomination, no prescribed fee was payable. Finally, the Tribunal is satisfied that the applicant paid the required nomination training contribution charge.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
The Department’s Integrated Client Service Environment (ICSE) records indicate that the Department conducted some monitoring of the applicant in 2011 but there is no indication that this continued or resulted in any of the kinds of actions or sanctions listed in r.1.13A above.
Accordingly, given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Tasmania, the relevant occupation is Marketing Specialist, and the date of application is 31 August 2019.
The Tribunal is satisfied that there is no requirement for licensing or registration for Marketing Specialists in Tasmania.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth, and of Tasmania, relating to employment
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
There is no evidence in the Department’s records to indicate that the applicant owes any debt in relation to a training contribution charge.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The material provided to the Department indicates that the applicant, trading as Frontier Education, operates a college providing vocational training to local and overseas students in Australia over several campuses, including ones located in Cairns, Brisbane and Hobart.
The Tribunal has had regard to the most recent financial statements (for financial year 2021/2022) and BAS for the period to 31 March 2023, and is satisfied the they indicate that the applicant is actively and lawfully operating a business. The Tribunal notes that the applicant’s income for 2021/2022 was approximately $4.8 million.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
There is no evidence to suggest that the applicant’s business activities include labour hire to unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal is satisfied that the applicant’s nomination identified a need for the nominee to be employed in the nominated position, and the Tribunal finds that r.5.19(9)(c) is therefore met.
The organisational chart provided indicates that the nominated position is based in the Hobart office of the applicant, the staff of which also include a Sales and Marketing Manager and 2 Sales Representatives.
In the statement of 4 July 2023, the applicant’s director Mr Ni provided the following information to support the applicant’s genuine need for the nominated position:
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I would like to represent Frontier Leadership Education (ABN: 71 141 901 975), trading as Frontier
Education, to make this statement and declare the genuineness of the nominated position of a full-time
Marketing Specialist (ANZSCO Code: 225113). This position is entirely under our direct control, and is genuine within the nature of our business and our business activities.
Since acquisition in 2018, our business has had a strategic plan in place to establish the position of a fulltime Marketing Specialist right from the early stages of our business development. The position is crucial to educational providers, playing a vital role in implementing effective marketing strategies aimed at attracting and retaining students, promoting various educational programs, and establishing a strong brand image. A qualified Marketing Specialist will contribute to the brand establishment and market share enlargement.
We initially underwent recruitment for this position in August 2019, when our business performance had steady growth. Through the first recruitment activity, we identified the nominee Ms Xiao LIANG as a suitable candidate and provided her with the RSMS Nomination sponsorship. Unfortunately, the nominee failed to fulfil the position due to the refusal decision made by the Department.
Considering our business operational needs, we continued to seek suitable candidate via business and
personal networks and sourced Abby Huang to occupy the position. Abby joined us in late 2019 after Abby left us Teresa CHAN took over the position but resigned from the position in the end of March 2023.
Immediately after we received the resignation notice from Teresa, we continued to seek suitable candidate since then but we encountered challenges in finding one due to the regional workforce shortage. Later we reached Ms. Xiao LIANG, a previous successful candidate in our talent database, recognizing her past achievements and considering her currency, availability and interest in the position, the board made the decision to recruit and nominate her as the Marketing Specialist.
The tasks and duties performed by the nominee are aligned to the ANZSCO definition of the nominated position – Marketing Specialist. The salary is in line with the market standard. (Please refer to the separately attached "Job Description" and "Salary Determination Letter" for detail).
The nominated Marketing Specialist will be based at our main campus located at 5/188 Collins Street, Hobart TAS 7000. Despite being registered in Brisbane, our Hobart campus has surpassed all others with the highest student demand and enrolment, becoming our largest campus and generating the greatest income, and has become our main campus. Accordingly, we have strategically centralized all operational teams, including Finance, IT, and Marketing, at the Hobart campus, ensuring efficient coordination and enhanced services for our students.
We are dedicated to employing the nominee on a full-time basis and ensuring the long-term stability of the position within our organization. Our business's current size and turnover reflect our financial capability to sponsor the nominee and fulfil all employment obligations for a minimum of two years.
For more information on the employment terms and conditions, please refer to the attached "Signed Employment Contract."
1 Company Overview
Frontier Education was initially established in 2010. We acquired the college in August 2018. Please refer to separately attached ASIC record for more details. Frontier Education is a leading national trainer in vocational education (Certificate, Diploma and Advanced Diploma). Please refer to our website for reference:
business is a provider of educational programs which are registered through CRICOS (the
Commonwealth Register of Institutions and Courses for Overseas Student). Our core products encompass registered courses, as outlined below, and the corresponding suite of competitive student services tailored specifically for international students. Please refer to the screenshot below for registered course information that we abstracted from CRICOS’s official website.
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Since the establishment, Frontier is committed to raising our company's competitiveness in the market. This is especially true after the acquisition in 2018. By far, our business has six locations in four campuses throughout Australia, making a total capacity of 1785 students across locations. Please refer to the following table for details of the campuses. We also attached lease agreements of four premises for your reference.
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In our commitment to delivering exceptional services to our students, we prioritize recruiting highly skilled staff members from the local job market. Currently, our team comprises 27 staff members, including 18 fulltime employees, 2 part-time employees, and 7 casual employees/contractors. We are proud to share that over 85% of our staff are either Australian permanent residents or Australian citizens. For a detailed overview of our employees, please refer to the attached "Employees List."
2 Genuine need of the nominated position
2.1 Consistency with business context
The nominated position aligns closely with our business context as increasing student enrolments is crucial for the growth and development of our institute. In recent years, the competition among VET and ELICOS course providers in Australia has intensified. With education services being relatively homogeneous, price competition is limited, making reputation-building and reaching target customers essential for success in the education sector. This underscores the importance of marketing for an education provider like ours.
It is indeed common for education providers, including universities and colleges, to hire in-house full-time marketing experts. These marketing positions are crucial for universities to effectively promote the programs, attract prospective students, and build a strong brand presence. Here are some common marketing positions available in universities and colleges across Australia:
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the nominated position and the whole sales and marketing team fit into the business activity we are undertaking. The products (courses and programs) we provided to students (our clients) have a genuine need to be introduced and promoted to the potential market.
2.2 Marketing Specialist Essential of Hobart Campus
The Hobart campus holds significant importance within the Frontier.
2.2.1 Hobart is Our Largest Campus
First and foremost, it has the largest number of students and has experienced the highest growth rate. For the nine-month period ending on March 31, 2023, we achieved a total sales figure of nearly 3 million. Notably, the Hobart campus contributed 53.6% of the total sales, amounting to $1,830,791.36. This highlights the strong performance and substantial contribution of the Hobart campus to the overall operation of the Frontier group.
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2.2.2 Hobart is Our Business Central Hub
Secondly, the Hobart campus serves as the central hub of Frontier Education, accommodating all our
departments and functions.
Our institute, like other education and training providers in the industry, follows a similar organizational structure. We have three functional departments: the Academic Department, Finance and Administration, and Sales & Marketing. These departments play vital roles in our overall operations and contribute to the success and growth of our institution.
The Academic Department focuses on delivering high-quality education and ensuring academic excellence across our programs. It is organized into four faculties, namely BSB Faculty, CHC Faculty, PSP Faculty, and SIT Faculty. Each faculty is responsible for managing specific academic affairs related to their respective fields. Over 53% of our academic staff members are located at the Hobart campus.
The Finance and Administration department, along with IT support, is responsible for managing financial operations, and administrative functions, and providing technical support across our organization. These crucial functions are centralized at our main operational hub, the Hobart campus. By housing these teams at our central location, we can effectively manage our financial affairs, handle administrative tasks, and provide technical assistance to support our overall organizational objectives.
It is here that our marketing department is located, facilitating seamless coordination and communication among various departments. This centralized setup enhances operational efficiency, decision-making, and eliminates the necessity for a separate marketing department elsewhere. The department consists of two sales representatives, and one marketing specialist (currently vacant), and be responsible for promoting our institution, attracting prospective students, and developing strategic partnerships.
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2.2.3 Current Situation and Urgent Marketing Needs to Support Future Strategic Development
Our marketing strategy has undergone significant changes due to the impact of the COVID-19 pandemic.
The closure of Australia's international borders has had a profound effect on the international education industry, which was previously one of our most successful sectors. According to TEQSA, student enrolments across the entire sector have declined by 25% overall, and many private colleges have been forced to shut down due to the loss of their international student market. However, thanks to the prompt advice and strategic approach of our marketing specialist, we have been able to adapt quickly to the market downturn and changing enrolment patterns. We have actively identified opportunities to shift our focus toward securing enrolments from domestic students and existing on-shore international students. This strategy has allowed us to successfully navigate through this challenging period.
Our ability to adapt and persevere has not only ensured our survival but also positioned us for success in challenging times. As the COVID-19 situation improves and restrictions ease, the education sector has begun to witness a recovery since late 2022. The market conditions have naturally resulted in the exit of several competitors, allowing us to gain a stronger foothold. To be specific, there has been a significant increase in international student enrolments from 2022 to 2023, indicating a positive trend in the sector.
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Additionally, the vocational education and training (VET) sector has experienced a remarkable growth of 16% from 2020 to April 2023. These statistics highlight the potential for further growth and development in the coming years.
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Moreover, according to the Australia International Education 2025 report, it is projected that by 2025,
international student enrolments could reach a staggering 990,000. This projection underscores the
tremendous opportunities that lie ahead for our institute and the wider education industry.
Given that our school currently has approximately two-thirds of its capacity available, it is crucial for us to seize this opportunity to boost our enrolments. As part of our long-term strategic plan, the appointment of a full-time marketing specialist is of utmost importance. This position is essential in effectively promoting our institute, attracting prospective students, and ensuring the sustained growth and success of our educational programs, especially in the post-pandemic period. We required the knowledge in optimizing our online presence and engaging with a broader audience, the ability in monitoring market trends, conducting research, and providing insights to ensure we adapt our offerings and strategies accordingly.
In addition, it is imperative to have a marketing specialist who will actively engage with both local and international agents. The number of agents directly impacts our student enrolment, contributing to the expansion of our client base. With a current count of 231 agents, the role of a marketing specialist becomes essential in negotiating favorable terms in agent agreements and establishing and nurturing robust relationships. Their expertise and proactive approach will enable us to maximize our agent network's potential and drive sustainable growth.
Furthermore, we have plans to develop a transitional education program with an overseas education provider.
This initiative requires the expertise of a marketing specialist who is familiar with the overseas education industry. The specialist will be responsible for developing marketing budgets and processes, as well as approaching and negotiating the details of the Transnational Education (TNE) arrangements. Their role will be pivotal in establishing fruitful collaborations and expanding our educational offerings.
With the support of a skilled marketing specialist, we can effectively utilize our remaining capacity and reach our full potential within the next 2-3 years. This growth trajectory has the potential to significantly increase our turnover, potentially tripling it compared to its current level. We attribute our ability to persevere and succeed to our resilient management team, functional marketing strategies, and strong vision for the future.
We acknowledge the immediate requirement for a marketing specialist and understand the importance of promptly filling this position. By having a dedicated professional in this role, we will enhance our ability to meet the needs of our growing student body and accomplish our strategic goals.
2.3 Position is existing
The nominated position is not a newly created role, it is previously held by Teresa CHAN, who was primarily responsible for enhancing our brand awareness and fostering B2B cooperation.
This position, marketing specialist, is first introduced to our group in the mid-2019, which is the second year since we acquired the institutes. At the very first stage, we had planned to set such a position like all other educational institution. We figured out that engaging a marketing specialist in this stage would be valuable and can be highly beneficial as it assesses the demand for specific programs, identify target demographics, and help shape the institution's marketing strategy and branding. By nominating a qualified individual for this role, we aim to build upon the existing foundation and further strengthen our marketing efforts.
The position of marketing specialist was initially occupied by Abby Huang, who held the role until her departure from our company. Following her departure, Teresa Chan assumed the position and remained in this role until March 2023. Once we reliased Teresa's intention to resign in Feburary, we have been actively advertising a job vacancy from February 22, 2023, to March 25, 2023. However, we have faced difficulties in finding a suitable candidate due to the regional workforce shortage. As none of our current staff possess the required marketing expertise, our new marketing strategies and plans are not progressing as desired.
2.4 Financial Capacity to Recruit a Full-Time Marketing Specialist
Currently, all of our campuses have returned to normal operation and enrolment as the COVID-19 pandemic has subsided. Our business has an income of $4,849,309, a payroll of $1,820,087, and a net profit of $155,459 in FY2022. These financial figures demonstrate that our business has reached a level of profitability that enables us to allocate resources toward hiring a suitable candidate for an existing position. We are committed to fulfilling all employment obligations and ensuring that the selected candidate receives fair compensation and benefits in accordance with industry standards.
Therefore, we have a genuine need to employ a full-time Marketing Specialist at Hobart Campus to focus on overall business marketing strategy and implementation and we have financial capacity to support such a position in next 2 years.
3. Right candidate for the Position
In September 2019, Ms. LIANG was identified as a standout candidate through a rigorous recruitment
process. Her exceptional education background and extensive work experience distinguished her from other applicants. Our company has a robust recruitment system that maintains a talent pool, storing records of job events and past applications. This system allows us to stay connected with candidates like Ms. LIANG, who serve as valuable resources for future hiring endeavors.
Taking into account Ms. LIANG's previous successful application and our current recruitment challenge, we have recently contacted her to ascertain her current status and availability for the nominated position. This communication serves the purpose of evaluating her present qualifications and establishing her interest and availability for a potential appointment.
Over the past decade, Ms. LIANG has garnered extensive experience as a marketing specialist within the education industry. Her substantial background aligns closely with our business context, and she has demonstrated expertise in the field of education and marketing to Asian students and in-depth knowledge of oversea education providers, which is in line with our strategic plan. Furthermore, we have been particularly impressed by her exceptional proficiency in English.
Ms. LIANG’s academic qualification and previous career achievements indicates that she will be well suited for the nominated position. It is our firm belief that she will make a considerable contribution and become an asset to Frontier Education.
Should you have any inquiries, please do not hesitate to contact us for further information.
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At hearing, both Ms Ye Wang and the nominee confirmed the above and provided additional details of the nominee’s role and duties. The Tribunal found them to be credible and articulate witnesses. The Tribunal notes that the nominee was originally selected for the role in 2019 but was unable to take up the role at that time due to the Department’s refusal of the applicant’s nomination of her. In the interim, 2 other incumbents carried out the role but they had both left the company. The role was identified by Ms Wang (on behalf of the applicant’s directors) as critical to the applicant’s operations, and she also gave evidence that there were ongoing difficulties for the applicant (pre-dating COVID19, but exacerbated by the restrictions on temporary visa holders entering or travelling within Australia during that period) in recruiting and retaining a suitable employee for this position from locally available candidates.
The Tribunal notes that the letter accompanying the RCB certification of 12 November 2019 also supports this and asserts that the applicant has a genuine need for the position within its business operations.
Having considered the available evidence, the Tribunal is satisfied that the applicant has a genuine need for the nominee to continue to act in the nominated position, and it finds that r. 5.19(9)(d) is met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The most recent employment contract for the nominee is dated 4 July 2023 and provides for a salary of $80,000 plus superannuation. There is no express preclusion on the contract continuing beyond 2 years, as it is expressed to be a permanent role.
In relation to whether the proposed salary meets the ‘annual market salary rate’ for what an Australian citizen or permanent resident would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location, the Tribunal is satisfied that there is no equivalent Australian employee to the nominee, so has had regard to the methodology set out in item 8 of IMMI 18/033. The Tribunal is satisfied that there is no applicable award for the nominated occupation and has had regard to the following sources of information about salaries in Australia for Marketing Specialists:
·Payscale website [accessed 25 July 2023] – this indicates that the average Marketing Specialist salary in Australia is $69,688 per year;
·the Australian government’s Labour Market Insights website [accessed 25 July 2023] does not provide the average earnings for a Marketing Specialist in Australia; and
·Seek.com.au [accessed 25 July 2023] – lists the following Marketing Specialist positions in Tasmania (taking only those that list a salary range):
oAdministration and Marketing Manager, private company, $52,000 - $57,000 per year plus superannuation;
oeCommerce Marketing Specialist, private company – $70,000 - $85,000 per year plus superannuation;
oCapital Engagement Officer (Brand Management – Marketing and Communications), TasWater - $43 to $48 per hour (annualising to $84,968 to $94,848);
oEvents and Engagement Coordinator, TasTAFE - $93,771 to $98,362 plus superannuation.
The Tribunal is satisfied that the nominee’s salary exceeds the average salary listed on the Payscale website and the salaries in 2 of the Seek.com.au positions. While it is below the average earnings listed on the Labour Market Insight website, and below 2 of the salary ranges listed on Seek.com.au, the Tribunal gives weight to the fact that the salary range for a Marketing Specialist is quite wide, depending partly on the size and nature of the employer. Having regard to this, the Tribunal considers that the annual market salary rate (AMSR) for this occupation is $75,000 per year.
Accordingly, and on balance, the Tribunal is satisfied that the nominee’s salary meets the ‘annual market salary rate’ for what an Australian citizen or permanent resident would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location.
The Tribunal is further satisfied, from the applicant’s recent financial information, that it has the financial capacity to employ the nominee on a full time basis for at least 2 years.
Finally, the Tribunal is satisfied that the nominee’s employment contract does not prevent the nominee’s employment being extended beyond 2 years.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033 (currently, $250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (currently $53,900 for nominations lodged prior to 30 June 2023) (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount of $250,000, the requirements of reg 2.72(15) must be met.
As stated above, the Tribunal has had regard to item 8 of IMMI 18/033, which provides that the appropriate method for determining the AMSR where there is no equivalent Australian employee is to look at the applicable Award (if any), or is there is no applicable Award, then ‘relevant information.’ As noted above, the Tribunal is satisfied that, having regard to a number of sources of salary information, the AMSR in this case is $75,000.
For these reasons, the Tribunal finds that the requirements of reg 2.72(15)(c) are met with regard to the method for determining the AMSR.
Moreover, the Tribunal is satisfied that the AMSR of $75,000 exceeds the TSMIT of $53,900 and it finds that the requirements of reg 2.72(15)(d) are met.
The Tribunal is further satisfied that the nominee’s annual earnings of $80,000 exceed the AMSR of $75,000, and it finds that the requirements of reg 2.72(15)(e) are met.
Finally, the Tribunal is satisfied that the nominee’s annual earnings will not be less than the TSMIT, and for these reasons, it finds that the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal that indicates the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Tribunal is satisfied that there is no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a subclass 186 (Employer Nomination Scheme) visa, and nominations for a subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a subclass 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
The Tribunal is satisfied that the postcode where the nominee will be employed, and where the applicant’s business operates, is 7000 in Hobart, Tasmania. The Tribunal has reviewed the relevant instrument, IMMI 18/037, which indicates that this postcode is in regional Australia for the purposes of r.5.19.
The Tribunal is satisfied that the Tasmanian government’s Department of State Growth, one of the listed RCBs, certified the required matters on 12 November 2019.
IMMI 19/047 specifies the approved occupations for the purposes of this requirement, and the Tribunal is satisfied that it includes the occupation of Marketing Specialist (ANZSCO code 225113), and that the occupation is not subject to any caveats.
The occupational description for a Marketing Specialist in the Australian and New Zealand Classification of Occupations (ANZSCO) online dictionary provides as follows:
…
2251 Advertising and Marketing Professionals
Advertising and Marketing Professionals develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
- planning, developing and organising advertising policies and campaigns to support sales objectives
- advising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
- coordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
- researching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
- supporting business growth and development through the preparation and execution of marketing objectives, policies and programs
- commissioning and undertaking market research to identify market opportunities for new and existing goods and services
- advising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
- creating, scheduling and publishing marketing content to social media platforms and websites
- applying statistical modelling methods to determine the potential impact of pricing strategies on profitability
- monitoring performance of initiatives, providing regular reporting and insights as required
- analysing data from digital marketing campaigns and platforms
- recommending updates to digital content to improve search engine metrics
Occupations:
- 225111 Advertising Specialist
- 225112 Market Research Analyst
- 225113 Marketing Specialist
- 225114 Content Creator (Marketing)
- 225115 Digital Marketing Analyst
…
225113 Marketing Specialist
Alternative Titles:
- Marketing Consultant
- Marketing Coordinator
- Marketing Officer
Identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.
Skill Level: 1
Specialisations:
- Brand Manager
- Category Manager
- Pricing Analyst
- Product Manager
·Sales Promotion Officer
…
The position description provided to the Tribunal for the nominated position provides as follows:
…
Job Duties
• Designing, planning and implementing marketing strategies that promote Frontier Education’s courses and services
• Implementing online and offline marketing campaigns that generate enquiries and covert enquiries to clients
• Expanding current marketing channels and liaising with partners and educational agents to foster strong relationships to support student flow
• Working with other departments in developing new initiatives to promote Frontier Education through several channels, including marketing events, marketing campaigns and social media platforms marketing
• Coordinating and supporting various marketing events, including domestic and international activities such as agent events, Open Day and agent workshops.
• Undertaking marketing research to identify potential new institutional partners and key cities to support business growth and development
• Analysing, reporting and advising on market intelligence to inform activities and develop international marketing strategies, with a primary focus on the international market.
• Observing and analyzing customer needs, behaviors and change in the market and proposing appropriate responses to it
• Reporting to the sales and marketing manager and CEO and formulation of marketing strategies according to management advice
…
The Tribunal acknowledges that the occupation of Marketing Specialist may be found in a wide range of occupational or industry sectors, including (in this case) an education provider. It is satisfied that the applicant’s operations require a Marketing Specialist to promote the College to overseas students, particularly in China and the Philippines (the applicant’s current priority targets).
The Tribunal accepts the detailed and credible evidence provided by Ms Wang and the nominee at hearing regarding the nature and scope of the duties in the nominated position of Marketing Specialist, and is satisfied that they largely correspond with the duties set out in ANZSCO for the occupation.
Finally, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, Hobart. In reaching this conclusion, the Tribunal gives weight to the evidence of Ms Wang that recruitment and retention of employees in the nominated position has been an ongoing issue for the applicant in Hobart, an assertion that is also supported by the RCB in its certification dated 17 November 2019. The Tribunal accepts that these difficulties have been exacerbated due to the international and domestic travel restrictions imposed as a result of the COVID19 pandemic, and gives weight to the fact that the most recent Skills Priority List published by the Australian government’s National Skills Commission in 2022 lists the occupation of Marketing Specialist as being in shortage in every state in Australia apart from Western Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Conclusion
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.
Alison Mercer
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2023] AATA 3080

8 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction