Hamnavy Pty Ltd (Migration)

Hamnavy Pty Ltd (Migration) [2023] AATA 4305 (15 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hamnavy Pty Ltd
REPRESENTATIVE:  Ms Kelli Michelle Schatkowski
CASE NUMBER:  2112647
HOME AFFAIRS REFERENCE(S):          BCC2020/197632
MEMBER:Peter Emmerton
DATE:15 November 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 15 November 2023 at 11:20am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Baker – adverse information – underpayment of staff – sponsorship bar – reasonable to disregard – unintentional breach – time elapsed – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), rr 1.13A, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2021 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 28 January 2020. 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 Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because adverse information was known to Immigration about the nominator, or a person associated with the nominator, and it was not reasonable to disregard any such information.
The applicant appeared before the Tribunal, via video, represented by Mr Peter Pattison, Managing Director on 14 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from the visa applicant Mr Felix Arguna Cabutihan. This was a combined hearing with 2114311, (the visa applicant) following the agreement of all parties.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5) which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal has read and carefully considered the evidence provided to the delegate and the Department.
The Tribunal has read and carefully considered the written evidence presented to it prior to the hearing as listed below.
- Dept notification of approval as sponsor 9 May 2018
- Representative’s submission 8 September 2023
- ASIC extract & ABN
- Financial Statements FY 2021 and FY 2022
- Tax Documentation FY 2021 and FY 2022
- Employment Contract dated 28 January 2020
- BAS Statements between 2021 and 2022
- Organisation Chart and staff list
- ANZSCO details and analysis
- 457 visa grant document documentation
- Applicant passport page, PAYG and ATO Tax Documents
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, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.
The nomination application was made electronically in accordance with approved Form 1395 (Internet) together with Form 1395 Attachment and supporting documents (Nomination TRN: EGOLUWEG3U) and was accompanied by the prescribed fee mentioned in regulation 5.37, so therefore satisfied the requirements of regulation 5.19(2)(a) and (f).
The nomination application identified the position (regulation 5.19(2)(b)) and identified the relevant person in relation to the position (regulation 5.19(2)(c)) and identified an occupation in relation to the position (regulation 5.19(2)(d)). Hamnavy Pty Ltd nominated Mr Felix Arguna Cabutihan for the permanent position of Baker, ANZSCO Code 351111, Skill level 3, therefore the requirements of regulation 5.19(2)(b), (c) and (d) are satisfied.
The nomination application identified the subclass and stream to which the Nomination related. Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition Stream (sub-regulation 5.19(2)(e)(i)).
The nomination application was accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination (contribution to the Skilling Australians Fund (SAF) levy). The Nomination application was made online and accompanied by the nomination training contribution charge (SAF Levy) of AU$3,000.00 for small business, therefore satisfied the requirements of regulation 5.19(2)(fa).
The nomination application identified the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the Nomination. The annual turnover was less than AU$10 million. The Nomination application was made online and accompanied by the nomination training contribution charge (SAF Levy) for small business, so therefore satisfied the requirements of regulation 5.19(2)(fb).
The nominating entity’s application in the Temporary Residence Transition Stream included a written certification by the nominator stating whether or not the nominator had engaged in conduct, in relation to the nomination, that constitutes a contravention of sub-section 245AR(1) of the Migration Act 1958. They stated that they have not engaged in conduct in relation to this Nomination that constitutes a contravention of sub-section 245AR(1) of the Migration Act 1958. No contravention has occurred therefore they satisfied the requirements of regulation 5.19(2)(g).
In relation to the ‘Paying for visa sponsorship – certification requirement’ (section 245AR of the Migration Act 1958) the Nominator has certified that they have not engaged in conduct in relation to this Nomination that constitutes a contravention of sub-section 245AR(1) of the Migration Act 1958.
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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
The delegate found when making their decision that there was evidence of adverse information relevant to the person’s suitability as an approved sponsor or a nominator in the case before the Tribunal. Specifically, the nominator had been found to have underpaid staff and subsequently they were barred from being a Standard Business Sponsor for a period of 2 years. The delegate did not find there was sufficient reason to disregard this breach.
The bar lapsed as of February 2022, more than 20 months prior to this decision. The Tribunal believes ensuring correct wages are paid to employees is sacrosanct. It also believes the original penalty was a reasonable response to the failure of the nominator to ensure they met their legal obligations. The Tribunal notes with some concern the nominator was not assisted by the Department when they made enquiries regarding the correct calculations and a discrepancy according to their calculation formula. There is some question as to whether the immigration lawyer the nominator had been using at the time adequately communicated with the Department and the nominator questions whether the Department used the correct Award when determining if incorrect wages had been paid. It is not feasible to ascertain with corroborative evidence what took place at that time.
The Tribunal is aware that the current vast array of wage calculations necessary to determine the correct wage is provided is complex and exacerbated by non-standard working weeks and hours. It does also note in a positive light that the nominator remedied the back pay utilising the Departments method of calculation to ensure compliance. The Tribunal therefore believes that the breach was most likely unintentional, and they acted promptly in good faith to correct the error. The Tribunal does not consider the previous bar currently relevant because of the time elapsed and the subsequent actions taken by the nominator once made aware of their failure to comply.
The Tribunal accepts as fact that the nominator believed the discrepancy with the Department was in the vicinity of $500 in 2 cases. The Tribunal is satisfied it is reasonable to disregard the past transgression as no further breaches have been recorded and it was a substantial time in the past. The Tribunal notes the nominator has been reissued with a current SBS. The nominator, when asked how they would ensure a similar problem did not occur in the future, stated they have now set salary levels above what is required by the award to ensure this circumstance is not repeated. The Tribunal notes the current rate has increased across this cohort of employees which was verified by the current Payroll data viewed by the Tribunal and the visa applicant. The Tribunal further notes that a substantial, multi-level method of ensuring wage rates are not incorrectly calculated has been introduced lessening the likelihood of future transgressions.
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 New South Wales, the relevant occupation is Baker, ANZSCO 351111 and the date of application is 28 January 2020.
There are no relevant licencing / registration / membership requirements for this occupation however the Tribunal observes the visa applicant is in possession of a relevant educational qualification, a Certificate lll in Retail Baking obtained in Australia.
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.
The Tribunal notes that there is no substantial evidence before it that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia, aside from the issue dealt with in paragraphs 25-29 of this decision. This was corroborated during the hearing. The Tribunal notes the statement made by the nominator they had a 3- month penalty more than a decade ago, which was never explained to them in a cogent manner. The delegate did not refer to this historical minor penalty. The Tribunal also notes there is no evidence of a recurrent pattern of breaches or deliberate inappropriate business actions.
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.
In accordance with regulation 5.19(2)(fa), the Nomination was accompanied by the nomination training contribution charge that was payable in relation to the nomination (contribution to the Skilling Australians Fund (SAF) levy). The nomination application was made online and accompanied by the nomination training contribution charge (SAF Levy) of AU$3,000.00 for small business.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a Subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.
The Tribunal notes that at the time the application was made, the identified person held a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in sub-clause 457.223(4) of Schedule 2 as in force before 18 March 2018 (regulation 5.19(5)(a)(i)).
The visa applicant held a Subclass 457 visa granted on the basis that he satisfied the criterion in sub-clause 457.223(4) of Schedule 2. The Subclass 457 visa grant is dated 16 March 2016 evidencing the name of both the sponsor and the visa applicant, in the nominated occupation of Baker, ANZSCO 351111 and the visa validity was until 16 March 2020.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Baker, ANZSCO 351111.
Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4-digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that sub regulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is IMMI 19/049.
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
The occupation is listed in ANZSCO and has the same 4-digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa was granted. The Tribunal notes the current contracted salary as $62,500 plus superannuation guarantee, currently 11% providing a total remuneration package of $69,375. This places the remuneration in the mid quartiles. The Tribunal notes the visa applicant is remunerated at the rate of a taxable income of $53,900 according to the original Employment Contract and accepts the evidence given during the hearing that the figure has risen to the current level of $62,500.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(b) is met.
A legislative instrument made under sub-regulation 5.19(8) exempts the identified person from the operation of this sub-regulation. This sub-regulation is not applicable as the visa applicant held a Subclass 457 visa on 18 April 2017 (transitional arrangements), so he is exempt from the occupation list requirement.
Given the above findings, the Tribunal is satisfied the requirements of 5.19(5)(c) are met.
The Tribunal has reviewed the information submitted to the Department, materials supplied in the original application, the current Organisation Chart, Job Description, materials supplied to the Tribunal, current Employment Contract and the requirements set out in ANZSCO 351111. In addition, it has questioned both the visa applicant and the nominator throughout the hearing in relation to the forementioned issues.
Given the above findings, the Tribunal is satisfied that regulation 5.19(5)(d) is met.
Given the above findings, the Tribunal is satisfied that the requirements set out in regs 5.19(5)(b), (c) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:
·a Subclass 457 visa in the Standard Business Sponsorship stream, or
·a Subclass 482 visa in the Medium-term stream, or
·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.
Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.
In this case, the nomination application was made on 28 January 2020. The relevant instrument made under reg 5.19(6) is IMMI 18/052. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument. The Tribunal notes that the applicant was granted a 457 visa on 16 March 2016 which ceased on 16 March 2020. It also observes the applicant has worked full-time for the nominator, in the relevant role during that time-period.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
The nominator is the standard business sponsor, (SBS) who last identified the visa applicant in a nomination made under section 140GB of the Migration Act 1958 (regulation 5.19(5)(h)(i)). The visa applicant held an approved sponsored visa with the nominating employer for the duration of employment during their 457 visa and is still employed with the sponsor. According to Departmental records the most recent Standard Business Sponsorship agreement was approved on 3 May 2018 and expires on 3 May 2028. It notes the current 5-year approval between 3 May 2023 and 3 May 2028.
The Tribunal has checked the ASIC data base and perused a substantial number ATO Taxation Returns, BAS documentation and relevant financial activity documentation. The ABN 72 070 055 784 was first activated on 26 June 1995, is currently active and due for review on 26 June 2024.
The Tribunal is satisfied the nominator was the last standard business sponsor to identify the identified person in an approved reg 2.72 nomination, and the nominator is actively and lawfully operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) 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(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/045: reg 5.19(7).
The occupation identified is not exempt. The Tribunal has perused the applicant’s submission which articulates a clear need for the visa applicant in the current role. The most recent employment contract indicating a reasonable remuneration package combined with the fact the visa applicant has worked for the nominator for approximately 6 years is significant regarding genuine need. No one is employed for such a substantial time unless genuinely needed in the business.
The Organisation Chart perused by the Tribunal further adds to this weight of evidence as does the fact the organisation is now composed of multiple retail outlets, (16 in total) with a substantial current staff of approximately 110. It is noted that additional staff will be required into the future. It is noted from the evidence given by the nominator that a further modest expansion is planned and an additional 5-6 franchised stores are likely to open during 2024. The Tribunal notes the very substantial revenues over the last 3 years and associated recent substantial profits. This is a demand driven industry with all production required to be ‘just in time’ to ensure freshness of highly perishable product. The Tribunal has checked a well-known online job site and notes that there are approximately 5,300 related roles in this field currently under recruitment throughout Australia.
It is reported that the restaurant and café industry is growing at approximately 14% each year, however, it is well known that there is a shortage within the tourism and hospitality industry and that many establishments are struggling to fill required positions to continue operating effectively.[1]
[1] Skills Certified, available from:
According to the National Skills Commission, Chefs, Cooks, Pastrycooks and Bakers are in a shortage across all states and territories. According to the National Skills Commission Internet Vacancy Index dated June 2021 (being the most recently published results), the number of advertised vacancies rose over the year to June 2021 to record a historical high vacancy rate after the initial drop in early 2020 for Food Trades Workers.[2]
[2] Australian Government, National Skills Commission, available from:
Under questioning the Tribunal was satisfied the nominator employs visa holders as he struggles to employ local citizens due to the perceived challenging hours, location coupled with the local population’s career aspirations. The organisation has also found it challenging to run a successful apprenticeship structure due to the location and employment expectations of the surrounding population.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) as stipulated by reg 5.19(7). This is not relevant in the current decision.
Secondly, reg 5.19(5)(m) 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(5)(n) 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 Tribunal notes that the delegate was not dissatisfied that the financial position of the applicant demonstrates that it can comply with the requirement to provide two years of full-time employment to the visa applicant as a Baker. The Tribunal has formed a positive view having received and reviewed substantially more current information than was available to the delegate at the time of their decision. Importantly the current financial documentation provided in evidence demonstrates a substantial and financially robust business with an extremely positive profit margin at this time of decision. It notes the nominator has weathered the 2-year challenges associated with Covid-19, having maintained his business regardless of the financial impost which has delayed future growth. No doubt the many years of business experience provided a substantial raft of skills utilised to ensure the business survived the most devastating business and financial circumstances in recent decades. The Tribunal is satisfied that the business can employ the identified person for at least 2 years.
The Tribunal notes that the visa applicant has been employed for approximately 7 years with a current salary of AUD $62,500 including the current Superannuation Guarantee. It is clear from this fact alone that the 2-year minimum has been met and greatly exceeded. It is reasonable to extrapolate from this fact that employment is likely to continue for the long-term.
The Tribunal has carefully examined the financial evidence provided which includes multiple years of ATO Taxation Returns, Profit and Loss Statements, Balance Sheets and BAS documentation. It notes the operation is highly profitable.
The Tribunal has inspected the employment contract, the terms do not include an express exclusion of the possibility of extending the period of employment beyond 2 years.
The Tribunal has researched the market rate for similar roles and notes that the current remuneration package provided to the applicant is in the mid quartiles of the market rate.
The Tribunal acknowledges the undated submission provided by the nominator’s accounting firm referring to the FY 2022 results and attesting to the current financial viability of the firm and their ability to employ the applicant.
The Tribunal is satisfied 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 that 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 Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services, particularly in-light of the nominators ongoing growth. It is aware that the workforce is mobile, that the specialist skills associated with this type of fast paced operation are highly sought after and readily transferred between competing businesses.
The Tribunal is cognisant of industry competitor’s actively targeting competing businesses, trying to poach key staff to overcome their own staff shortages or obtain a market advantage. In addition, it is observed that these roles are not always highly sought after by appropriately qualified personnel as they are often relatively modestly rewarded whilst also presenting complex and challenging workloads, split work hours and responsibilities. A perceived lack of social status may further erode employers ability to recruit and retain.
It is clear, that retaining and recruiting staff has become even more difficult since the advent of the Covid-19 pandemic and the subsequent staff shortages caused by the effective cessation of temporary and permanent immigration due to mandated border closures for a substantial period. Neither the economy nor the immigration flow have returned to a point of equilibrium. It is not expected to do so for a considerable time according to a vast array of expert opinions and reports.
Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry is one such sector. The problem is exacerbated in regional areas or smaller States, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source.
There is an expectation, that it will take considerable time before temporary immigration returns to pre-Covid levels. Regional locations face enhanced vulnerability due to greater needs, higher employee visibility and smaller, often more transient candidate pools. It is well known that the current immigration setting associated with temporary and permanent net migration is operating at a record high level to ameliorate the lingering pandemic impacts.
The Tribunal notes the Reserve Bank of Australia’s current Cash Rate level has been in the ascendency which is designed to cool an overheating economy but is yet to achieve its stated aim. There is a growing expectation that rate rises are most likely towards the end of the current cycle.
The Tribunal in addition notes the modelling associated with unemployment in Australia released in the Australian Government’s Budget on 25 October 2022. It further reinforces that low unemployment is expected to continue for some years into the forward estimates period of 4 years.
The recently updated Australian Bureau of Statistics data released on 19 October 2023, shows in September 2023 the following key statistics in trend terms:
- unemployment rate fell to 3.6%.
- participation rate was static at 66.7%.
- employment increased to 14,111,200.
- employment to population ratio decreased to 64.4%.
- underemployment rate decreased to 6.4%.
- monthly hours worked decreased to 1,940 million
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(l) does not apply and regs 5.19(5)(m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument 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 (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).
It has been clearly established by the Tribunal that the salary being provided to the visa applicant meets or slightly exceeds the Annual market salary rate paid to an Australian worker who is:
(a) employed in the same workplace as the nominee; and
(b) at the same location as the nominee; and
(c) performing equivalent work to the nominee
This was verified by reference to the current employment contract and inspection of the relevant multi-year ATO documents. The Tribunal has perused the visa applicant’s Pay Slips from 4 May 2023 until 2 November 2023. It has in addition reviewed all the Payroll Summary data and breakdown of Payroll from 1 January 2023 until 30 June 2023. The financial data aligns appropriately. The Tribunal believes the remuneration being provided to the visa applicant is as claimed. It also observes that the data provided shows the employees in a similar role at the same level are being paid at a comparative rate. It is observed that the pay scales are extremely complex due to the diverse penalty rates, starting and completing work hours and the varying Public Holiday and weekend rates. It acknowledges that such a complex and convoluted structure as it currently stands lends itself to inadvertent miscalculations.

The Tribunal notes that the relevant rate of the TISMIT is AUD $53,900 and the visa applicant is paid substantially more than this rate. The Tribunal is also aware the remuneration paid would not meet the revised TISMIT as of 1 July 2023, which is AUD $70,000. This was discussed with the nominator. It was clearly explained by him that he had made provision for this fact going forward in his business.
The Tribunal is satisfied the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033.
The Tribunal has determined that 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
For these reasons the requirements of reg 2.72(15)(c), reg 2.72(15)(d), reg 2.72(15)(e), reg 2.72(15)(f) reg 2.72(15)(g) are met.

100. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
101. Regulation 5.19(5)(p) 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.
102. The Tribunal has inspected the employment contract of the visa applicant and has determined there is not any information before it that indicates the nominee’s employment conditions will be less favourable than those for the Australian equivalent. It again notes the remuneration package and the comparative Payroll data referred to in previous paragraphs of this decision.
103. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
104. Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
105. The Tribunal has determined that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). They have demonstrated to the satisfaction of the Tribunal a genuine need for the identified person to be in the position under the nominator’s direct control and employed on a full-time basis for at least 2 years. It has been established the identified person’s terms and conditions are not expressly excluding the possibility of extending the period of employment beyond this and the nominator’s business has the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
106. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
107. 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
108. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
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:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(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.

(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
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.

Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)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;
(n)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;
(o)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;
(p)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;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2023] AATA 4305

15 November 2023

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