HSCH PTY LTD (Migration) - [2023] AATA 4648

HSCH PTY LTD (Migration) [2023] AATA 4648 (1 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  HSCH PTY LTD
REPRESENTATIVE:  Dr Joseph Tai-Bong Ri
CASE NUMBER:  2013428
HOME AFFAIRS REFERENCE(S):          BCC2019/6548171
MEMBER:SM Michael Cooke
DATE:1 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 December 2023 at 2:44pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Supply and Distribution Manager – no adverse information known to the Department – breaches of the Fair Work Act 2009 – failure to properly pay employees minimum rates of pay – knowingly to create false or misleading records – whether reasonable to disregard it – remediation of errant employer practices – approved as a Standard Business Sponsor – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19
CASES
Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655
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 13 August 2020 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 7 December 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the 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 regulation 5.19(4)(b) requires that either there is ‘no adverse information known to the Department about the nominator or a person associated with the nominator’, or it is ‘reasonable to disregard any adverse information known to the Department about the nominator or a person associated with the nominator’.
The applicant has provided the Tribunal with a comprehensive submission and other information.
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 TRT 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.
Evidence, Reasons and Findings in relation to the application requirements
The Tribunal notes with particular interest the decision made by the Tribunal (separately constituted) (Member Katie Malyon presiding) to set aside the matter of HSSP Pty Ltd (AAT 1814766) and approve the nomination of that company.
The aforementioned case was finalized on 20 May 2021 following the Federal Court case FWO v HSCC Pty Ltd. The Fair Work Ombudsman ran an investigation into a number of associated companies of the applicant - called in shorthand - the Hero Sushi case. The results were handed down on 18 May 2020 wherein two of the same directors of the nominator firm were found to have breached workplace relations law attracting heavy penalties. Naturally, in that case the Court decision enlivened the requirements of r.2.72(9) - which is identical to r.5.19(4)(b) in the present case.
It should be noted at the outset that HSCH PTY LTD (the applicant) is an associated entity of this abovementioned firm with significant corporate linkages also to the companies called HSCK Pty Ltd (ACN 163 351 148) and HSPF Pty Ltd (ACN 600 961 046). For instance, two of the three different company directors are William Lee (aka DEUK Hee Lee) and Ho-Kun Hwang who were included, respectively, as the fourth and fifth respondents in proceedings before the Federal Court of Australia on 10 December 2019. This case also involved 3 associated entities of the Company namely: HSCC Pty Ltd (ACN 166 005 072), HSCK Pty Ltd (ACN 163 351 148) and HSPF Pty Ltd (ACN 600 961 046).
Following the decision in the Federal Court case, Tribunal Member Malyon(separately constituted) issued a s.359A letter regarding the adverse Court findings and as they impacted the applicant firm in her matter.
As it turns out the proceedings involved multiple breaches of the Fair Work Act 2009 (the FW Act) and the Fair Work Regulations 2009 (the FW Regulations) as follows:
· failure to properly pay employees minimum rates of pay, penalty rates, overtime and special clothing allowance; properly pay full-time employees annual leave on termination of employment; make superannuation contributions for the benefit of employees; make and keep various employee records; give payslips to employees within one working day of payment; and,
· knowingly to create false or misleading records and making use of false or misleading records by producing them to the Fair Work Ombudsman (the FWO);
Further information in the s.359 Invitation (issued by Tribunal Member Malyon) revealed that in the decision in Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655 (the Hero Sushi case) delivered on 18 May 2020, Flick J awarded penalties pursuant to s.546(1) of the FW Act totalling $891,000 including $85,000 against William Lee (aka Deuk Hee Lee) and $85,000 against Hokun Hwang (aka Ho-Kun Hwang). His Honour required that the penalties be paid to the Commonwealth of Australia within 12 months of the date of the Federal Court’s Order pursuant to s.546(3) of the FW Act, that is, by 18 May 2021. Flick J found that 94 workers across the 3 Hero Sushi Group entities referred to above were paid flat rates as low as $12 per hour resulting in underpayments of $700,832.88 between April 2015 and July 2016. Many of the workers were young Japanese and Korean nationals holding Working Holiday or Student visas.
In addition, Justice Flick found that William Lee (aka Deuk Hee Lee) and Hokun Hwang (aka Ho-Kun Hwang) along with 3 payroll officers employed at the Hero Sushi Group’s Head Office provided FWO Inspectors with hundreds of pages of false records on 11 separate occasions showing inaccurate hours of work and pay rates. His Honour found that each of these 5 individuals aided and abetted or were knowingly concerned in the multiple breaches of workplace laws. His Honour observed at para [1] of the Hero Sushi case that it is ‘about greed and the exploitation of the vulnerable’. The Tribunal is informed that the quantum of penalties imposed in the Hero Sushi case was the highest ever imposed by the Federal Court up to that time.
An ASIC search of the company (HSSP Pty Ltd) made by Tribunal Member Malyon confirmed that two of its directors are Deuk Hee Lee (DOB07/08/1970) and Ho-Kun Hwang (DOB 23/01/1967). Notes on the Department’s file stated that the ‘Federal Court has found 3 Hero Sushi stores operated by Directors Deuk Hee Lee & Hokun Hwang underpaid workers and falsified documents’. Even though the delegate’s decision to refuse the Company’s nomination was made on the basis that r.2.72(10)(f) of the Regulations was not met, the Tribunal became aware that the company might not have met another essential criterion, namely, r.2.72(9) of the Regulations. This criterion requires that ‘there is no adverse information known to Immigration about the Company or a person associated with the Company, or, in the alternative, it is reasonable to disregard such information’.
Following the issue of the s.359 Invitation by the (separately constituted) Tribunal, Member Malyon considered the detailed responses tendered by the applicant. She then responded to this information in her decision in detail at paragraphs [42] to [59] as follows:
The Tribunal has considered the information before it in regard to the circumstances which contributed to the FWO’s investigation, the findings of that investigation as outlined in the Hero Sushi case and the action taken by the Company’s Directors William Lee and Hokun Hwang in response. It accepts the Federal Court’s findings and the penalties imposed in that case have had a damaging impact on the reputation of the Company and its Directors. The Tribunal also accepts the remorse and contrition expressed by Mr Lee. It commends the Company on proactively engaging with workplace law firm Lawyers and external audit firm Moore Stephens to assist address shortcomings identified in the Hero Sushi Group’s business operations that lead to underpayment of 94 workers and creation of false records provided to the FWO. Based on the audit conducted by Moore Stephens in the period of 1June 2020 to 30 November 2020 and reported in its Audit Report dated 30 March 2021, the Tribunal accepts no errors or exceptions were identified in any of the 12 procedures performed. This included an assessment of whether all allowances were provided to employees in line with the Award or the Restaurant Industry Award (emphasis added).
The Tribunal acknowledges that the Company has implemented transparent and robust systems facilitating weekly internal and bi-annual external audits of its compliance with workplace laws as well as providing training to staff about compliance with workplace laws. In fact, the changes adopted reflect many of the recommendations in Chapter 8 of the FWO’s Report referred to above as they relate to the nature of the Hero Sushi Group’s business. Mr Lee has also expressed deep contrition and remorse for the shortcomings in his past conduct, that of Mr Hwang and their corporate entities who were respondents in the case (emphasis added).
Having considered all the evidence before her (following extensive enquiry) Tribunal Member Malyon made a crucial finding that – “it was reasonable to disregard the adverse information’, thus enabling the associated applicant firm (in her case) to satisfy the requirements of r.2.72(9) the Regulations”.
The Tribunal observes that r.2.72(9) is a mirror of the requirements found in reg.5.14(4)(b). As a result of this the Tribunal gives the (separately constituted) Tribunal’s decision great weight in its consideration of the present application. This is especially so because the delegate’s decision to refuse approval of the applicant’s nomination (in the present case) preceded Member Malyon’s decision of 20 May 2021 (AAT1814766). In other words the findings in the delegate’s decision (the subject of this review) are in a sense ’ancient history’ from a contemporary perspective.
Importantly, the Tribunal has noted that the Department’s satisfaction with the applicant’s remediation of its errant employer practices. This has resulted in the nominator being approved as a Standard Business Sponsor (ie renewal). As shown in a recent notice submitted to the Tribunal, the applicant applied for approval of a nomination under reg 5.19 of the Regulations on 17 March 2022 and which was approved on 13 September 2023.
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 Tribunal is satisfied on the available evidence 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 Tribunal is satisfied that there was previously adverse information known to Immigration (see paragraph 11) but finds it is ‘reasonable to disregard it’ in the light of the (separately constituted) Tribunal’s decision in (AAT1814766) and recent information indicating the Department is now favourable to the nominator.
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 NSW, the relevant occupation is Contract Administrator – 511111 and the date of application is 7 December 2019.
The Tribunal finds no evidence of any such licencing / registration / membership requirements applicable to the said position.
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 finds that following the Tribunal decision in HSSP Pty Ltd (AAT 1814766) the Tribunal is satisfied that the applicant now has is a satisfactory record of compliance with relevant laws following its full rectification of its past non-compliant history.
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.
The Tribunal has no evidence of any debt payable by the nominator under s 140ZO.
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.

Based on evidence before the Tribunal, the nominee held a Subclass 482 visa in the Short-term stream at the time of application for a Subclass 186 visa on 7 December 2019. As such, the Tribunal finds that r.5.19(5)(a)(iii) is considered met by virtue of him being “a person specified in a legislative instrument (IMMI 18/052) – Transitional operation of reg 5.19 for certain 457 visa holders.”
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 Contract Administrator (ANZSCO 511111).
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 subregulation: reg 5.19(5)(c).
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).
Findings:
·Whether the occupation is listed in ANZSCO and has the same four digit occupation code as the occupation in respect of which the most recent 457/482 visa was granted;
The nomination application (TRN EGOOH5A1OY) was lodged on 7 December 2019 and identifies the occupation as Contract Administrator (ANZSCO 511111).
·Whether the occupation is listed in the legislative instrument in force at the time of nomination application and whether any caveats set out apply OR whether an exemption as set out in the instrument applies; and
The relevant legislative Instrument in this instance is IMMI 18/052: Transitional operation of regulation 5.19 for certain 457 visa holders and the Instrument exempts the nominee from this criterion by virtue of his being a specified person in the Instrument in that he was an applicant on18 April 2017 for a Subclass 457 visa which was subsequently granted on 16 May 2017 which is evidenced in his 457 visa grant.
·Whether there is any information known to Immigration that indicates identified person not genuinely performing tasks of occupation (per ANZSCO) and, if so, whether it is reasonable to disregard that information.
The Tribunal is unaware of any information known to Immigration which indicates that the nominee is not genuinely performing the tasks of the occupation as specified in ANZSCO.
Given the above findings, the Tribunal is satisfied that 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 7 December 2019. The relevant Instrument made under reg 5.19(6) is IMMI18/052.
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.
Findings with respect to:
·what visas were held by the identified person during the applicable time period and for how long to determine whether Subclass 482 visa in the Short-term stream can be taken into account.
By operation of the instrument IMMI18/052 (section 7), the relevant period in this instance is 2 years in the 3-year period immediately prior to the nomination made. The relevant 3-year period is from 07/12/2017 to 07/2019 (date of the nomination) and the nominee has held the combined 457/TSS visas during the relevant period.
·what employment was being undertaken by the identified person in the applicable time period and for how long, whether that was the position in relation to which the 457/482 visa was granted, whether it was full time and being undertaken in Australia,
The nominee’s 2-year full-time employment in the nominated occupation of Contract Administrator with the nominator has been evidenced to the Tribunal by the applicant’s representative.
·if the occupation is specified in an instrument made under reg 2.72(13) whether the identified person was employed in that occupation during the applicable period and for how long.
The Tribunal finds that r.5.19(g) does not apply in this instance because the nominee’s visa/s were not granted in relation to an occupation specified in the legislative instrument made under r.2.72(13), namely LIN 19/212: Specification of Exempt Occupations Instrument 2019. Therefore, standard employment requirements were met for at least 2 years during the 3-year period immediately prior to the nomination application.
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.
Following the combined evidence of the Department’s approval of the nominator as a SBS and a nomination approved under s 140GB on 16 May 2017 and 23 May 2019, the Tribunal finds that 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).
The Tribunal finds that the identified person has been occupied by the nominee for the last 6 years under a contract of employment. The nominator has, therefore, expressed a need for the person as he has a having a pivotal role in the business operation in the Headquarters of the entire Hero Sushi Group entities in NSW, Qld, Vic and ACT. The Tribunal finds that the need is genuine.
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.
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 finds (from the evidence tendered) that the terms and conditions of the nominee’s employment will not exclude the possibility of extending the period of employment, and the annual market salary rate for the occupation, and the nominator’s business has the capacity to employ the nominee for at least 2 years and pay them at this rate.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (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. 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: 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 Tribunal finds that the amount specified as annual earnings in the Migration Instrument (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 is $250,000. The nominator confirms that the Nominee’s annual earnings are below $250,000. Therefore, the specified salary requirements in r.2.72(15) apply to the nomination in this instance.
As there is no Fair Work instrument or relevant industrial instrument or transitional instrument applicable to an Australian worker employed in the same workplace and at the same location as the nominee, performing equivalent work to the nominee, the Nominator has determined the AMSR by the market salary rate information available in various materials.
The representative informs the following:
There is no equivalent Australian worker performing equivalent work on a full-time basis in the same workplace at the same location of the Nominator’s business. Therefore, the Nominator utilised various information available on the recruitment media including Workforce Australia information ( and recent advertisements for equivalent positions in the same location in such reputable recruitment websites as and
We confirm that the Nominator’s explanation of how they have used relevant information to determine what an equivalent Australian worker would be paid appears compliant with the methodology stipulated in IMMI 18/033.
The Tribunal accepts this proposition and as such r.2.72(5)(c) is considered met.
The AMSR identified by the nominator for the nominated position is $85,000 excluding any non-monetary benefits. Hence, this is not less than the TSMIT specified as $53,900 and found in IMMI 18/033. The Tribunal finds that r.2.72(5)(d) is met.
The nominee’s guaranteed annual earning will be $90,000, which is not less than the AMSR and also TSMIT. The Tribunal finds that r.2.72(5)(e) and (f) are met.
Regarding the r.2.72(5)(g) requirement, based on the above, the nominator is compliant with all salary requirements prescribed in r.2.72(5)(c) to (f).
The Tribunal is satisfied that there is no information known to the Tribunal to indicate that the AMSR as determined by the nominator is inconsistent with Australian labour market conditions relevant to the nominated occupation.
The Tribunal finds the requirements of sub-regulation 2.72(5)(g) are met.
The Tribunal finds that the nomination meets the salary requirements set out in r.2.72(15).
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)
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.
The representative (in the tendered submission) informs he has drawn the Tribunal’s attention:
“to all of the documents provided herewith as detailed in paragraph 18.1 above, which include the nominee’s PAYG/income statements, payslips, ATO’s Notice of Assessment, and Superannuation contributions. In light of these documents, we can confirm that the nominee has been paid by the nominator according to the nominated annual market salary rate amount of $85,000 per annum with superannuation.
The Tribunal is satisfied that there is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent.
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)
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.
The applicant has confirmed (to the Tribunal’s satisfaction) that the requisite information for the purposes of sub-reg 5.19(5)(k) to (n) has been provided on the application form as well as through its submission.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Michael Cooke
Senior 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.