HANMAUM AUSTRALIA PTY LTD (Migration)

HANMAUM AUSTRALIA PTY LTD (Migration) [2020] AATA 5938 (2 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  HANMAUM AUSTRALIA PTY LTD
CASE NUMBER:  1809183
HOME AFFAIRS REFERENCE(S):          BCC2017/172668
MEMBER:Mr S Norman
DATE:2 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 December 2020 at 1:42pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Conference and Event Organiser – term of employment – financial capacity to pay nominee’s full-time salary for at least 2 years – international education and travel service – adverse impact of COVID-19 on the tourism and hospitality industry – business viability during closure of international borders – opening up of domestic tourism – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations). The Department decision was lodged with the Tribunal.
The applicant applied for approval on 13 January 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. On 14 March 2018, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations.
The applicant/nominator (represented by its Director, Ms Hannah SUH) appeared before the Tribunal on 17 November 2020, to give evidence and present arguments. The Tribunal also received oral evidence from the associated visa applicant/nominee (Ms Eun Mi KIM). The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 13 January 2017, the applicant/nominator (Hanmaum Australia PTY LTD, trading as Hanawon) lodged a nomination application under the Direct Entry stream; the nominated occupation was as a Conference and Event Organiser (ANZSCO: 149311); the associated visa applicant/nominee was Ms Eun Mi KIM (DOB: 9 July 1984); the base rate of pay per annum was $45,000, plus 9.5% superannuation excluding commissions and bonuses (total remuneration package of $49,275).
Further, substantial evidence and submissions were lodged by and on behalf of the applicant. Though the Tribunal has not expressly referred to all the evidence herein, I have had regard to all evidence and submissions, prior to drafting this decision.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Based on the evidence before the Tribunal, I accept the application was made on the approved form and accompanied by the prescribed fee in r.5.37; that it included a written certification stating the nominator had not engaged in conduct in relation to the nomination that contravened s.245AR(1)[1]; and that it identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
[1] Nomination application – p.8; and p.9.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Based on the evidence lodged with the Department and the Tribunal, much of which is referred to herein, I accept the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence that the nominator’s business activities include those relating to labour hire to an unrelated business.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
In their decision, the delegate noted the applicant advised it was an “international education and travel service agency established in 2002”[2] (at the Tribunal hearing, the applicant confirmed this remained a principal focus of the business). In July 2015, the business (Hannahwon Pty Ltd) was restructured and a new company was created (Hanmaum Australia Pty Ltd). The applicant explained the new company concentrated on the growth of Australian tourism and International education, especially in the Cairns region of Queensland. The business assisted travellers, backpackers and international students from all around the world to temporarily reside in Australia. They also provided education consulting and school enrolment services to international students from Korea, Japan, China and Taiwan. The applicant also said the business arranged (around Cairns) popular tourist services to tourist/backpackers and at competitive rates. In support of the nomination application, the applicant lodged:
·     Business Activity Statements (BAS) from July 2015 to June 2016 - showing total wage expenditure for the period was $71,726 – gross payroll expenditure also stated to be $71,729[3] (the nomination application indicated that three staff were employed[4])
·     Employment contract dated 6 January 2017[5] - a further contract was signed 1 July 2020
·     Job advertisement for Events Coordinator dated 2 January 2017 – which included job description
·     Form 1404, Copy of Regional Certifying body recommendation
·     Submissions relating to the need for a paid employee
[2] PDF – from p.53.
[3] Nomination application – p.5.
[4] Nomination application – p.5.
[5] PDF – from p.44.
The delegate noted the base rate of pay per annum was $45,000, plus 9.5% superannuation excluding commissions and bonuses (total remuneration package of $49,275). At hearing, the applicant said the visa applicant commenced working in the business around July 2015; but that she only commenced to work full time in June 2019 (also noted below).
The delegate then said that given the BAS indicated total salary for the 2015/2016[6] financial year of $71,726, this would mean the average salary for the claimed three staff was around $23,909 per annum (which the delegate believed was low). The delegate acknowledged the BAS indicated an increase in sales, but they were not satisfied this could ‘be relied upon as an indication of the business position’. Further, and again based on the evidence provided, including the document titled Need for Paid Employee, the delegate was not satisfied the nominator had lodged verifiable evidence to support the claims the employee was needed for the business. The delegate acknowledged the Regional Certifying Body advised there was a need for the paid employee and had taken this advice into account. However, the delegate gave the document little weight due to the absence of other verifiable evidence lodged with the nomination, that may ‘confirm’ the material claims.
[6] PDF – from p.24.
As a consequence, the delegate was not satisfied the applicant had demonstrated the financial capacity to be able to pay the full-time salary for the nominated position for at least two years. The delegate found the applicant did not meet r.5.19(4)(d)(1); or r.5.19(4). Next, and put briefly, the delegate was not satisfied the applicant met r.5.19(3). The delegate then refused the nomination application lodged by Hanmaum Australia Pty Ltd.
In response to the Tribunal s.359(2) letter dated 18 August 2020, the applicant lodged:
·     Profit and Loss Statement for year ended 30 June 2018 – net operating profit after income tax was $7,706
·     Profit and Loss Statement for year ended 30 June 2019 – net operating profit after income tax was $7,782
·     Activity Statements
·     July 2019 to September 2019 – total sales was $253,694 / total salary wages and other payments was $35,044
·     October 2019 to December 2019 – total sales $168,275 / total salary wages and other payments were $49,015
·     January 2020 to March 2020 - total sales was $241,613 / total salary wages and other payments were $48,846
·      April 20 22 June 2020 – total sales It was$147,136 / total salary wages and other payments were $54,277
·     Company tax return 2018 – taxable net income was $14,865
·     Company tax return 2019 – taxable net income was $17,410
·     Contract of Employment dated 29 December 2018 (Base salary now $54,000)
·     Contract of Employment dated 1 July 2020 ($27.33 per hour exclusive of superannuation)
·     Business plan etc
Attached with the agent email to the Tribunal dated 10 November 2020, the following was lodged:
·     Jack & Vicko letter dated 30 October 2020 – referring to cooperation between them and the applicant business (also attached was a Memorandum of Understanding dated 24 July 2020)
·     Woosong College letter dated 3 November 2020 - referring to co-operation between the applicant business and the College (also attached was a Memorandum of Understanding dated 14 October 2019)
·     Evidence of communications between, and work undertaken for, inter alia Woosong College and the applicant (mainly pre-COVID-19)
·     PAYG for the visa applicant (Eun Mi Kim) for year ending 30 June 2020 – gross payments $45,000
·     Letter from a named agency (Travel) dated 2 November 2020. That referred to the work undertaken with the applicant business and discussions about inter alia new projects, post COVID-19 (also attached was a Memorandum of Understanding dated 7 January 2020)
Accountant letter dated 4 November 2020. That stated (in part):
Based on 2018 & 2019 financial reports, the gross profit increased largely by 17.81% which comes by the figures of $214,934 in 2019 and $182,443 in 2018 respectively despite the business’s turnover decreased by 8.23% which comes by the figures of $848,927 in 2019 and $925,038 in 2018 respectively.
The business focused on employing specialists of the industry rather than just hiring temporary subcontractors in order to succeed in their new target market. This resulted higher payroll expenses including superannuation in the 2019 financial year compared to the 2018 financial year which comes by the figures of $164,324 in 2019 and $82,009 in 2018 respectively.
…..
The forecast turnover for the year ended 30 June 2021 is $950,000.
When the border is re-open[ed], the company expects that the number of potential customers will increase as the interest to visit and study in Australia has not diminished and the business is looking forward to restart its programs as soon as possible and they are already noticed that the onshore market is gradually increasing.
and:
Regardless of the impact of COVID-19 on the business, the company successfully retained all staff throughout COVID-19 and turnover has stayed reasonably strong with stable income received from education provider and existing customers...” and ...”Hanmaum Australia Pty Ltd is financially capable of continuing employing Eun Mi Kim as a full-time Event Coordinator, at the market rate/on a salary of $47,384 per annum and under the applicable terms and conditions for at least the next three years.”
The accountant also referred to business strategies to recover after COVID-19:
The business is planning and organising events and seminars to be rolled out in post-COVID-19 period such as monthly special events and seminars, university internship program and study tours, junior/senior program conference and job placement seminars with local hotels. The business expects there will be high volume of international students who would like to come to Australia to study, as the business received many inquiries from offshore students and they are all waiting for the Australian border to re-open again.
The business is organising internship programs for Korean university students and closely cooperate with Woosong university and local businesses, organising language courses, job ready programs and placements.
The business has recently entered into a contract with Gongjung Korean Travel Agency and Y-sopoong (which is a YMCA – Director Soonkyu Kang) and Jack&Viko Education Agency in China (Director – Chun Liu) to provide short/long term Cairns local life experience for primary, secondary high school and college students. The first study tours are commencing once the border opens.
Since COVID-19 crisis and travel restrictions the business laisse with its overseas clients online and organise virtual meetings to promote its services and plan for post COVID-19 activities as soon as international borders re-open.
Hanmaum Australia Pty Ltd T/A Hanawon has strong reputation and long-term relationship with its overseas clients. They are in the progress of introducing new line of services and programs, such as junior program, study tour and VET course pathway program. They are in discussions with its business partners to enter into long-term contract for theses new services.
Cairns is very popular with working holidays visa holders and the business provides job placements, short courses and tours at competitive cost while they are in Cairns. They work closely with local business stakeholders, tour agencies and accommodation providers, to set up our programs with details. Specifically designed for working holidays visa holders such as tour events, RSA course at Holmes Institute, CCEB Job ready course and share house events
and:
It is our opinion that based on the shareholders supports, records and projections referred to above, Hanmaum Australia Pty Ltd is financially capable of continuing employing Eun Mi Kim as a full-time Event Coordinator, at the market rate/on a salary of $47,384 per annum and under the applicable terms and conditions for at least the next three years.
Also attached were migration agent submissions dated 9 November 2020. After setting out the history of the proceedings, it was said the business commenced in July 2015; the visa applicant was offered a permanent position in January 2017 (on a part time basis); that the business had the financial capacity to pay the visa applicant since that time; there is ‘no reason to suggest the nominee’s employment is likely to cease, nor that the business may not be able to continue employing the nominee in a full-time nominated position, over the next two year’; and a list of documents attached was also lodged.
Ms Hannah SUH (the applicant’s Director) lodged a statutory declaration dated 31 August 2020 (and 2 October 2020), and claimed they would represent the applicant at the Tribunal hearing, then set out the nature of the visa applicant’s work and repeated much of that which is already set out herein.
Ms SUH also said that since the coronavirus and travel restrictions they liaise with overseas clients online and organise virtual meetings; organise monthly seminars; said that Cairns is popular with Korean working holiday visa holders and that the applicant still provides short courses and tours at competitive costs in Cairns; that the business “continuously holds different types of events to entertain new and existing clients”; that the applicant organises internship programs for Korean university students; they had recently entered into a contract with a Korean travel agency; that they are confident the business will continue to be successful post COVID-19; that Ms Suh needs to travel and it is important they have reliable staff managing and arranging events in the Cairns office; that the coronavirus “had a strong impact on the business due to international students who plan to commence studies not being able to come to Australia”; that it is hoped and expected that potential customers will increase once the coronavirus has passed; though the company had to defer planned events due to the coronavirus and the lack of international travel; that the visit applicant had been employed (20 hours per week) in the position since July 2015 - and that since June 2019 the visa applicant had been employed full-time in the business; that the business employs three full-time staff and to contractors.
After considering same, the Tribunal accepts the visa applicant/nominee would be responsible for much if not most of the business strategies to recover after COVID-19.
At hearing, the applicant also advised the Tribunal that at the time the nomination application was lodged (13 January 2017), the business employed (approx.) 1 x full time person, and five part time persons. At the time of the Tribunal hearing (17 November 2020), the business employed 2 full time persons (including the visa applicant), and four part time persons.
The Tribunal then put the gist of the following to the applicant for comment:
Regarding students:
The international student crisis is causing a population shock that is only going to get worse, a new report by the Mitchell Institute has found. The education policy think tank estimates over 300,000 fewer international students — half the pre-coronavirus numbers — will be in Australia by July 2021 if travel restrictions remain in place. The pandemic has already cut the number of international student who would normally be in Australia by over 210,000.[7]
[7] COVID to halve international student numbers in Australia by mid-2021 – it’s not just unis that will feel their loss, 10 November 2020, The Conversation, , accessed 16 November 2020.
Regarding travel:
Australia's international borders are likely to remain closed until late 2021, a timeframe which would see the Government's contentious travel ban stretching to an unprecedented 18 months.
Federal Treasurer Josh Frydenberg flagged the distant date in his post-budget address to the National Press Club in Canberra this week.
"International travel, including by tourists and international students, is assumed to remain largely closed off until late next year and then gradually return over time, and a vaccine to be available around the end of 2021 is one of the assumptions in the budget," Frydenberg said.[8]
[8] Australia's international travel ban likely to remain until late 2021, 9 October 2020, Executive Traveller, , accessed 16 November 2020.
and:
On March 25, Prime Minister Scott Morrison issued a ban on international departures in a bid to curb the spread of COVID-19.[9]
Regarding unemployment (particularly in Queensland):
While Victoria and NSW have been hardest hit by the health crisis, Queensland’s job market has fared worst. The Sunshine State’s unemployment rate was the highest in Australia at 8.8 per cent in July – a 19-year high. And 144,500 jobs were lost between February and July as international and state border closures impacted tourism.
…..
Of the 20 regions with the highest unemployment rates in the land, Queensland had the highest representation with nine in July. Leading the way was Wide Bay, where the jobless rate rose by 8.2 percentage points – the second most in the nation – to 17 per cent. Next was the Queensland Outback (10.9 per cent), followed by Brisbane’s Moreton Bay South (10.5 per cent), Ipswich (10.1 per cent) and the Sunshine Coast (9.8 per cent).[10]
and:
Queensland’s economic rebound from COVID-19 is forecast to be almost twice as strong as the Australian average, according to the Palaszczuk Government’s COVID-19 Fiscal and Economic Review released today.
Treasurer Cameron Dick said while COVID-19 has wrought significant damage on jobs and businesses in Queensland and around the world, there is reason for optimism as the Palaszczuk Government’s plan to Unite and Recover for Queensland Jobs continues to deliver for our state.[11]
[9] Australians might not travel overseas for at least another 12 months, 7 November 2020, 7 NEWS, accessed 16 November 2020.
[10] Double-digit regional unemployment rates, 21 August 2020, Adviser Voice, Craig James – chief economist – CommSec, , accessed 17 November 2020.
[11] Queensland economy fighting back against COVID-19, 7 September 2020, The Queensland Cabinet and Ministerial Directory, accessed 17 November 2020.

After having put the gist of the above to the applicant at hearing, and given it was conceded at hearing the core focus of the applicant business was as an ‘international education and travel service’, the Tribunal said it may not appear the business would retain the financial viability to employ the visa applicant in the nominated position for at least 2 years full time.
The applicant subsequently said inter alia:
·     The business was still paid by existing students who had continued to study in Australia, and that numerous others continued to make enquiries about studying in Australia and, as a consequence, the business would retain the financial capacity to pay the nominee
·     The Tribunal considered this claim along with the post hearing submissions, and accepts it is plausible that some payments would continue. However, the core business also relied upon new travellers and students and such persons may be scarce into the reasonably foreseeable future (ie due to travel bans)
·     That there was a capacity for the business to benefit from persons travelling within Queensland
·     The Tribunal noted (at hearing) that the tourism/hospitality industry in Queensland provided a very substantial boost for the economy, and (particularly after the recent Adelaide COVID-19 spike) it may appear that the inter-state, and international tourist markets may not provide much if any support in the foreseeable future (though see more recent evidence about this below)
·     The Tribunal also noted at hearing that Queensland had a substantial unemployment rate
·     The Tribunal also notes the BAS for the 2019/2020 financial year appeared to indicate a loss of turnover in October to December 2019; and particularly from April to June 2020 (which was the period first impacted by the COVID-19 loss of tourists)
·     The applicant believed that given the ongoing interest from persons from Korea, Japan, China and Taiwan, the business would continue to be profitable
·     However, the country information did not indicate the business was likely to benefit from students or tourist from such locations until at least the end of 2021 (though that is subject to the outcome of negotiations between the Australian government and other sovereign States[12])
[12] See - Federal Government in talks to expand coronavirus travel bubble beyond New Zealand to some parts of Asia, November 2020, ABC NEWS, accessed 16 November 2020.
·     The applicant referred to the membership program provided by the business, which extended discounts to tourists and students who had engaged the applicant business, in local business around the Cairns region.
·     The Tribunal accepts the applicant business provided such benefits
·     The applicant referred to having a reputation in business and within the area.
·     After discussing the issues, the Tribunal accepts this is correct, but as noted at the hearing, the Tribunal still must consider the impact of the COVID-19 pandemic on the applicant business capacity to meet its obligations under the Act
·     Reference was also made to the visa applicant having been employed in the applicant business for around five years and that there was ‘no reason to suggest the nominee’s employment is likely to cease, nor that the business may not be able to continue employing the nominee in a full-time nominated position, over the next two year’
·     However, and as noted at hearing, the issue before the Tribunal would not necessarily depend on what the applicant business had achieved prior to the impact of COVID-19, but what will occur in the next two years and beyond
·     It was also said the business had not released staff and had continued to operate during COVID-19 and this suggested the business had the capacity to continue to operate
·     The Tribunal accepts the applicant business had not released staff during the COVID-19 pandemic
As noted above, the applicant conceded in writing and at hearing, that COVID-19 had a ‘strong impact on the business due to international students who plan to commence studies not being able to come to Australia’.
In post hearing submissions, the applicant then lodged (in part):
·     26 November 2020 article titled ‘Thousands of tourists bound for Queensland but many venues remain restricted on numbers and some are still closed’ – referring (generally) to domestic tourism and that (principally tourism and hospitality) staff may be difficult to obtain as they are ‘getting JobSeeker and are happy at home’
·     30 November 2020 article titled ‘‘We don’t want to lie down’: New Cairns Airport boss ready to fight for new flights’ - referring to (generally) domestic tourism
·     A letter and Memorandum of Understanding involving Hanawon Pty Ltd
·     Statutory declaration from Hannah SUH dated 1 December 2020, stating inter alia:
It is very difficult to find reliable staff
We tried to recruit a suitable candidate to fill this position before lodging the nomination application in January 2017
Unemployment in Cairns has been high since COVID-19 … there is still a high demand for skilled employees in education sector
The student enrolments are on average for 2 years study course, which means ongoing cashflow from study fees
·     Evidence of current skills shortfall for chefs/cooks
·     Evidence of International Student Enrolments by Australian Statistical Geography Standard (ASGS) SA4 region – January – September 2020 – Cairns QLD
·     Reference letter for the secondary applicant
Since the hearing was conducted, the Queensland border has opened up to both Victoria and greater Sydney (as well as the rest of NSW):
Sydneysiders will be able to visit family and friends following Queensland Premier Annastacia Palaszczuk's announcement on Tuesday that she will ease border restrictions from December 1.[13]
The Queensland border will open to Victoria on December 1, Premier Annastacia Palaszczuk says, after the state recorded another day with no new coronavirus cases.[14]
[13] Queensland border opening to Sydney on December 1, 24 November 2020, The Sydney Morning Herald, Coronavirus Australia: Qld border to open to Sydney December 1 (smh.com.au), accessed 30 November 2020.
[14] Queensland border to open to Victoria on December 1 after 28 days with no COVID-19 community transmission, Premier says, ABC News, 25 November 2020, Queensland border to open to Victoria on December 1 after 28 days with no COVID-19 community transmission, Premier says - ABC News , accessed 30 November 2020.
The evidence also indicated the adverse impact of COVID-19 on the tourism and hospitality industry was substantial. For instance:
International visitors spent an estimated total of $4.5 billion during trips to QLD in the year ending June 2020
- International spending in Queensland was down 24% when compared with the $5.9 billion of the previous year
Domestic visitors spent an estimated total of $15.2 billion during trips to Queensland in 2019/20
…
- Domestic spending was down 18.8% when compared with the $18.8 billion of the previous year
Combined, visitors spent a total of $19.7 billion during trips to QLD in the year ending June 2020
- Total spending was down 20.2% when compared with the $24.7 billion of the previous year[15]
Therefore, a substantial amount of the tourism expenditure lost due to COVID-19, may very likely be again available to the Queensland economy, from the opening up of domestic tourism; and this should positively impact the applicant business in the foreseeable future. Based on the above evidence, the Tribunal also accepts that in (perhaps late) 2021, international travel will again be available and students and other travellers (constituting the applicant’s core business) will again travel to the region.
In the circumstances, the Tribunal believes it appropriate to extend the applicant the benefit of the doubt and accept the applicant has the capacity to employ the nominee in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
In the nomination application, it was explained the visa applicant would be employed in Cairns Queensland; and that there are no Australian employee/s in the applicant’s workplace doing the same work as the nominee. The applicant also lodged evidence of the market salary rate (from 2016[16]); a Fair Work Ombudsman document titled Pay Guide – Clerks - Private Sector Award published 26 June 2020.
[16] PDF – from p.39.
In submissions to the Tribunal, the applicant also lodged evidence of comparable rates of pay for persons in similar positions. Further, the Regional Sponsored Migration Scheme – Regional Certifying Body advice (Chamber of Commerce & Industry, Queensland), dated 1 May 2019 (and subsequently), advised that the terms and conditions of employment were no less favourable than those that would be provided to an Australian citizen. The applicant also lodged inter alia PAYSCALE evidence of the average Event Co-ordinator Salary in Cairns Queensland, as AUD $46,756.
The applicant also lodged documents titled “Comparison of the Position Description with the ANZSCO”; and a document titled Salary Benchmarking Analysis Report dated August 2020.
Based on the evidence before it, including that contained in the contract of employment, the Tribunal is satisfied that the terms and condition applicable to the position will be no less favourable than those that are or in this case, would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no adverse information known to Immigration or the Tribunal, about the nominator or a person associated with the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Based on the evidence before it, the Tribunal will accept 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.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring (in this case):
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The evidence lodged with the nomination application included a Regional Sponsored Migration Scheme – Regional Certifying Body advice (Chamber of Commerce & Industry, Queensland), dated 11 January 2017 (and 1 May 2019), advising the applicant satisfied relevant criteria.[17]
[17] PDF – p.22.
The applicant also had advised the Department that the duties of the position included:
In response to the s.359(2) letter, the applicant advised the ‘daily tasks’ included:
1) Promoting events to our existing and potential customers
2) Researching markets to identify new opportunities for events
3) Brainstorming/Outline for events
4) Responding to inquiries concerning services provided
5) Liaising/meeting with relevant business partners to ascertain precise event requirements/proposal
6) Producing detailed proposals for events
7) Arranging/coordinating/securing/booking a suitable venue, location, speakers, special guest, facilities, catering, signage, displays, audio-visual equipment, accommodation, transport and social events, for participants
8) Organising registration of participants
9) Discussing with director/colleagues, negotiating/agreeing to and managing a budget
10) Overseeing work by partners and evaluate on variations to work orders
11) Liaising with colleagues to promote the event 12) Preparing materials, hand-out, and flyers, overseeing/ensuring legal, health and safety obligations and adhered to
Other evidence of the visa applicant’s tasks included (statutory declaration of Ms SUH):
Other (more detailed) evidence of the applicant’s (and visa applicant’s) work were also lodged. The visa applicant also provided a statutory declaration dated 18 September 2020, which sought to further set out the nature of her work.
The applicant also lodged evidence of job advertising from 2017.[18] The applicant also lodged reference letters, a medical certificate dated 3 January 2020 for a Mr Duck Soo Hyun (Ms Suh’s partner) claiming they were being “investigated for a liver tumour and Hepatitis B infection which needs to be treated in Australia. He is therefore unable to fly until further notice” (further related explanation was also lodged).
[18] PDF – from p.36.
In post hearing submissions dated 17 November 2020, on behalf of the applicant it was stated inter alia:
The business advertised the nominated position on Indeed and Jobactive on 17 November 2020 until 30 November 2020 and provided recruitment evidence for purposes of evidencing that despite ongoing high unemployment there are no suitable candidates that could currently fill the nominated position…
The business received 18 applications and none of the applicants were suitable due to lack of relevant qualifications, work experience or cultural awareness and/or language skills. The recruitment summary has been provided with this submission.
The Frontier Education, and International College of Queensland in Cairns have provided letters of support regarding difficulties in recruiting suitable permanent staff in education sector in Cairns, such as the nominated position of Event Manager at HANAWON
and
With interstate borders opening, there is an increased number of visitors and hence demand for tourism and hospitality workers in Cairns and Far North Qld. Despite high unemployment in the region, there is a skills shortage of workers across hospitality and tourism sector, as Australian citizens and permanent residents are not viewing these positions as long-term career choice …
The additional information and evidence provided by the nominating business strongly support its submissions as discussed during the hearing that there is a genuine and continuous need for an Event Coordinator to work in the nominating business and that the skills required to fill this position continue to be in high demand and shortage during and in particular in the post COVID-19 recovery period
Next, prior to the hearing the applicant also lodged submissions from the Cairns Chamber of Commerce dated 12 October 200, which provided reasons why the position was genuine. Amongst other things, it was also stated (in part):
Cairns has long suffered from a lack of suitably qualified people in many skilled and semi-skilled occupations. A significant issue for businesses in this region is the highly transient nature of workers that impacts heavily on many business’ ability to maintain a stable and sustainable workforce without having to constantly find and retrain new employees, which is costly and disruptive for business. The transient nature of the labour force in Far North Queensland also impacts employee retention. These challenges are higher for positions that require not only the requisite skills, qualifications and experience, but also desirable language skills and international experience.
At hearing, the Tribunal noted the high unemployment rate in Queensland, particularly in the hospitality and tourism industry, and said it may be the nominated occupation could now be filled by an Australian citizen or permanent resident. It was claimed there is still a high demand for skilled workers in far north Queensland (including Cairns) and the specialist nature of the nominated occupation could not be readily filled from within the local workforce. However, the Tribunal referred to the above percentages expressed by the Director of the applicant business, and noted the first three tasks, which constituted 50% of the work of the nominated position, did not indicate that such work could not be readily undertaken by persons from within the now unemployed tourism and hospitality industries. It was claimed this was not correct and there still existed a shortfall of skilled staff in Cairns.
The agent requested, and the Tribunal agreed, that post hearing submissions about this may be lodged by 1 December 2020. The Tribunal emphasised that it may be useful for the evidence to focus on the impacts of COVID-19 on skilled workers, rather than evidence of the skill shortfall that existed prior to that time.
In post hearing submissions, the applicant also lodged (in part):
·     Evidence of recent job advertising for the position of Event Co-ordinator
·     26 November 2020 article titled ‘Thousands of tourists bound for Queensland but many venues remain restricted on numbers and some are still closed’ – referring (generally) to domestic tourism and that (principally tourism and hospitality) staff may be difficult to obtain as they are ‘getting JobSeeker and are happy at home’
·     30 November 2020 article titled ‘‘We don’t want to lie down’: New Cairns Airport boss ready to fight for new flights’ - referring to (generally) domestic tourism
·     A letter and Memorandum of Understanding involving Hanawon Pty Ltd
·     Statutory declaration from Hannah SUH dated 1 December 2020, stating inter alia:
It is very difficult to find reliable staff
We tried to recruit a suitable candidate to fill this position before lodging the nomination application in January 2017
Unemployment in Cairns has been high since COVID-19 … there is still a high demand for skilled employees in education sector
The student enrolments are on average for 2 years study course, which means ongoing cashflow from study fees
·     Evidence of skills shortfall for chefs/cooks
·     Evidence of International Student Enrolments by Australian Statistical Geography Standard (ASGS) SA4 region – January – September 2020 – Cairns QLD
·     Reference letter for the secondary applicant
At hearing, the applicant also said there was a need to employ a person with an understanding of the Korean (or other) culture in order for the business to be promoted to many of its core customers. However, the Tribunal noted the business was said to focus on persons from Korea, China, Taiwan and Japan, and it therefore appeared the business had a broader focus than merely Korean clients. Further, the Tribunal believed it probable that there were persons of Asian ancestry within the Cairns area who were Australian citizens or permanent residents, and that such persons may be able to undertake the work in the nominated position. The applicant did not dispute this, however they believed there was only a small Korean community within the Cairns region.

After then having considered the evidence, including that which was lodged after the hearing, the Tribunal accepts the position and business is located in ‘regional Australia’ (Cairns, QLD – IMMI 17/059). Based on the evidence herein, including that which was lodged post hearing, the Tribunal also accepts there is a genuine need to employ the nominee to work in the position under the nominator’s direct control. Given the ongoing skill shortages in Queensland (including Cairns), the Tribunal accepts the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area. Further, the tasks of the position correspond to the tasks of an occupation specified by instrument (IMM 17/058); and that no additional applicability provisions apply.
Finally, the Tribunal accepts that a Regional Certifying Body (IMMI 11/058) located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mr S Norman
Member

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

[2020] AATA 5938

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