Jerome Mobile Engineers Pty Ltd (Migration)

Jerome Mobile Engineers Pty Ltd (Migration) [2023] AATA 555 (20 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Jerome Mobile Engineers Pty Ltd
REPRESENTATIVE:  Mr Rick Gunn (MARN: 0530987)
CASE NUMBER:  2015497
HOME AFFAIRS REFERENCE(S):         BCC2020/1556366
MEMBER:Warren Stooke AM
DATE:20 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 February 2023 at 2:53pm

CATCHWORDS
MIGRATION–nomination – Direct Entry stream– Motor Mechanic (General) – there is no bar on the applicant to sponsor the nominee – Tasks correspond to specified occupation– genuine need to employ a paid employee to work in the position under the nominator’s direct control –no less favourable terms and condition of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 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 30 September 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 15 May 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b)(ii) of the Regulations because the delegate assessed that there was adverse information known to the Department about the applicant or person associated with the applicant and consequently subparagraph 5.19(4)(b)(i) was not met.
The applicant appeared before the Tribunal on 17 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gill, the nominee for the position of Motor Mechanic (General) – ANZSCO Code: 321211.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant stated that he had received and read a copy of the decision from the Department and had provided a copy of the decision to the Tribunal with the application for review. The applicant stated that he understood the nomination was refused because of a raid by the ABF in 2017 and the interaction was because of a contact with managers and they thought the applicant was running a scam workshop.
The application was the subject of a Departmental adverse information, which was documented in correspondence for comment from the Department dated 1 September 2020 and subject to a reply from the applicant on 29 September 2020.
The Tribunal notes that the decision in AAT Case Matter 2112872 addressed the Departmental investigation referred in the Departmental correspondence of 1 September 2020, similarly pertaining to the current Case Matter with the explicit finding that (at para 26):
‘…the evidence given to me at review was sufficient to rebut the conclusions reached by the ABF investigators and by the delegate who made the primary decision insofar as breaches of r.2.86 in relation to Mr Gill’s employment are concerned. The evidence available to me at review, as detailed above, demonstrates that in all likelihood Mr Gill has worked in his nominated skilled occupation of Motor Mechanic, performing the tasks expected of a Motor Mechanic, and that Mr Fernandez has ensured this has occurred.’
On the basis of the findings in the related Case Matter 2112872, the Tribunal is satisfied that there is no bar on the applicant to sponsor the nominee (as pertains to the former Departmental investigation) in the determination of this case, as currently constituted, given that the bar was removed following the decision by the Tribunal in Case Matter 2112872.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 Direct Entry reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant provided evidence that the business was registered on 18 February 1980 and assigned ACN 005 623 343 with Godfrey Joseph Fernandez as the Director. The associated business, Christy Motors Pty Ltd was registered with ASIC on 9 November 2008 and assigned ABN 134 244 714.
The applicant stated that the business operates a Licenced Motor Car Trading business for used cars in collaboration with Christy Motors Pty Ltd an associated company, that provides repairs and maintenance of motor vehicles, including spray painting, for the public. The business also manufactures and builds trucks and tanks for South West Water and Yarra Valley Water.
The applicant stated in the application that the business employed 14 Australian citizens and permanent residents and 10 foreign employees, which was provided to the Department in an organisation chart.
The business currently has 7 employees including the nominee, Mr Gill, who is currently the only mechanic in the team, who was engaged on a 457 and approved on 11 December 2017.
The applicant stated that he was injecting more capital into the business, following the Covid lockdowns.
The applicant stated that it was hard to get local tradesmen, where a contractor cost $35.00 per hour compared to an international student, at a cost of $19.50.
The applicant provided evidence of an employment contract for the nominee, Mr Gill, dated 9 November 2019 for a full-time position , as a Motor Mechanic (General) – ANZSCO Code: 321211 on a salary of $53,945 and superannuation of 9.5 per cent to commence upon grant of a 186 Visa.
The Tribunal asked the applicant if Mr Gill worked in the workshop and he responded that he works all over the place with outside jobs, which is supported by job cards and Jerome Engineering supplies the parts.
The applicant stated that the business contributes superannuation to Australian Super and that arrears of $60,000 for the business has now been rectified and payments are up to date.
The applicant stated that in the industry, mechanics are supposed to have their own tool kit and that with international students the business supplies the tools if they cannot afford it.
The applicant stated that the nominee had worked for the business since 2017 to 2018 and that the position required a minimum qualification of Certificate III.
The applicant stated that the employees are skills tested externally.
Evidence of Mr Gill (the nominee)
The witness stated that he understood the application for a sponsorship of a 186 Visa was refused because of a decision of the Department.
The witness provided evidence that he has completed the following courses of study:
a.Certificate III in Light Vehicle Mechanical.
b.Certificate IV in Automotive Mechanical.
c.Diploma of Automotive Management;
d.Certificate III in Automotive Electrical Mechanical.
The witness provided evidence that he was engaged on a 457 that was approved on 11 December 2017, which is when he commenced duties, full-time, with Jerome Engineering Pty Ltd on a salary of $53,945
The witness provided evidence that he undertook a PTE English language test of 30 July 2019 with a score of 56.
The witness provided evidence that the position of Motor Mechanic (General) – ANZSCO Code: 321211, included the following duties:
a.Undertaking site work on the repair of engines;
b.Engine overhauls;
c.Basic servicing and tunes;
d.Wheel alignments;
e.Repair of gear boxes and drive shafts.
The witness stated that the tools he used to perform the work are owned by the witness.
The witness stated that he has a wife and 8 year old, who was born in Australia.
Representative Submission
The Representative provided the Tribunal with the following submission on 30 May 2022:
“Re: Application for review of a refused Employer Nomination Scheme (Subclass 186) nomination
Review Applicant: Jerome Mobile Engineers Pty Ltd AAT Case number: 2015497
We refer to the above application and confirm that we act on behalf of Jerome Mobile Engineers Pty Ltd (“Review Applicant”).
We wish to advise that in the matter AAT Case number: 2006546 (Our Reference: 200654), the Tribunal (differently constituted) on 30 May 2022 handed down a decision to set aside the cancellation of the Review Applicant’s sponsorship and associated sponsorship bar.
We note that the administrative action to cancel the Review Applicant’s former SBS and bar it from being a sponsor for 5 years was in turn the sole basis upon which the present subclass 186 Nomination application was refused. Specifically, we would direct the Tribunal to the nomination decision record which notes:
On 16 March 2020, the applicant was notified by the department that, under section 140M(1)of the Act, the delegate had made a decision to bar the applicant as a sponsor for 5 years from sponsoring more people for Temporary Work (Skilled) ( Subclass 457) visas and cancel the approval as a standard business sponsor. The start date of the sanction is 16 March 2020 and end date is 15 March 2025.
The sanction was imposed because the nominating business has failed to satisfy:
- Regulation 2.89 Failure to satisfy sponsorship obligation The identified breach of the sponsorship obligations was.
- Regulation 2.86 Obligation to ensure primary sponsored person works or participates in activity in relation to which the visa was granted
The sanction is in effect until 15 March 2025.
Because the nominator is subject to a 5-year sanction ending on 15 March 2025 and the approval as a standard business sponsorship was cancelled, I therefore find there is adverse information known to immigration about the nominator under regulation 5.19(4)(b)(i).
On 1 September 2020, the applicant was provided an opportunity to comment on the department’s decision of 16 March 2020 to cancel the sponsorship and to bar the applicant as a sponsor for 5 years from sponsoring more people for Temporary Work (Skilled) (Subclass 457) visas, which constitutes adverse information under the provisions of the above definition, at clause 1.13A(2)(c).
(My emphasis)
Given the decision of Member Sheargold in Case number: 2006546, and in particular her explicit finding that (at para 26):
‘…the evidence given to me at review was sufficient to rebut the conclusions reached by the ABF investigators and by the delegate who made the primary decision insofar as breaches of r.2.86 in relation to Mr Gill’s employment are concerned. The evidence available to me at review, as detailed above, demonstrates that in all likelihood Mr Gill has worked in his nominated skilled occupation of Motor Mechanic, performing the tasks expected of a Motor Mechanic, and that Mr Fernandez has ensured this has occurred.’
We submit that the present matter should also be immediately set aside and the associated visa application (AAT Case Number 2112872) be remitted to the Department on the basis that the Adverse Information which was the sole stated reason for the refusal of this application has been found not to exist by the Tribunal.
On the basis of Member Sheargold’s finding, we submit that there is no reason for the matter to remain before the Tribunal and that a decision should be made ‘on the papers’ to set the nomination decision aside and to remit the visa for further processing.
Please contact our office should you require any further information. “
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.
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.
The applicant lodged the application to nominate the nominee for the position of Motor Mechanic (General) – ANZSCO Code: 321211 with the business on 15 May 2019 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Accordingly, the requirement in r.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 Representative for the applicant submitted:
…. we submit that there is a strong basis for considering that the findings of the ABF have been made on an improper basis and are liable to be overturned on review at the Administrative Appeals Tribunal. We therefore submit that it is reasonable to disregard adverse information under s 5.19(4)(b)(ii), or at the very least to defer making any decision until review proceedings can be made in respect of this decision.
The Tribunal is satisfied that the decision in AAT Case Matter 2112872 addressed the Departmental investigation referred in the Departmental correspondence of 1 September 2020, similarly pertaining to the current Case Matter with the explicit finding that (at para 26):
‘…the evidence given to me at review was sufficient to rebut the conclusions reached by the ABF investigators and by the delegate who made the primary decision insofar as breaches of r.2.86 in relation to Mr Gill’s employment are concerned. The evidence available to me at review, as detailed above, demonstrates that in all likelihood Mr Gill has worked in his nominated skilled occupation of Motor Mechanic, performing the tasks expected of a Motor Mechanic, and that Mr Fernandez has ensured this has occurred.’
On the basis of the finding in Case Matter 2112872 and the substitute decision applied in that case, the Tribunal is satisfied that there is no evidence of adverse information that would impact upon the applicant in this case.
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.

The Tribunal is satisfied that there are no such licencing / registration / membership requirements and if, so, whether the identified person did or could have met them at the time of application.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) does not apply.
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 applicant provided evidence of a contract of employment with the nominee dated 9 November 2019 for a full-time position, as a Motor Mechanic (General) – ANZSCO Code: 321211 on a salary of $53,945 and superannuation of 9.5 per cent to commence upon grant of a 186 Visa.
The applicant stated that the business contributed to Australian Super, superannuation for the nominee.
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 is not aware of any debt payable by the nominator under s 140ZO and, if so, whether it has been paid.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant provided evidence that the nominating business, Jerome Engineering Pty Ltd was first registered with the ASIC on 18 February 1980, and is a registered Australian business (ACN 005 623 343).
Further, the Tribunal is satisfied that the business, based upon the information presently before the Tribunal is actively operating lawfully and is directly operated by a principal shareholder.
In addition, the business has demonstrated an economic capacity to support the employment of the nominee since first employed on 9 November 2019 and remains in the business’s employ. As such, the Tribunal is satisfied the applicant will be able to employ the nominee for a period exceeding two years.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met. Accordingly, reg 5.19(4)(f) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal is satisfied that the evidence provided at hearing demonstrated that the nominee is performing automotive mechanical work for the nominating sponsor and that his duties include the following:
a.Undertaking site work on the repair of engines;
b.Engine overhauls;
c.Basic servicing and tunes;
d.Wheel alignments; and
e.Repair of gear boxes and drive shafts.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Additionally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The Tribunal is satisfied that the nominee has worked with Jerome Engineering Pty Ltd and the associated business, Christy Motors Pty Ltd, since engaged on an approved 457 Visa on 11 December 2017 and that the applicant has undertaken to continue the nominee’s employment for at least 2 years.
Further, the Tribunal is satisfied the terms and conditions of employment provided in the contract dated 9 November 2019, with a salary of $53,945 is commensurate with the terms and conditions that would be provided to an equivalent Australian citizen or permanent resident for the nominated position of Motor Mechanic (General) – ANZSCO Code: 321211.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument LIN19/047:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument ‘TSMIT’: r.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: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa). However, in this case, the power under r.2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).
As the annual earnings in relation to the occupation will be at least $53,900, the specified amount, the requirements of r.2.72(15) do not apply.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Tribunal is satisfied that the nominee has worked with Jerome Engineering Pty Ltd and the associated business, Christy Motors Pty Ltd, since engaged on an approved 457 Visa on 11 December 2017 and that the applicant has undertaken to continue the nominee’s employment for at least 2 years.
Further, the Tribunal is satisfied the terms and conditions of employment provided in the contract dated 9 November 2019, with a salary of $53,945 is commensurate with the terms and conditions that would be provided to an equivalent Australian citizen or permanent resident for the nominated position of Motor Mechanic (General) – ANZSCO Code: 321211.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa. In this case, the nomination relates to a Subclass 186 visa.
Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument. In this case, the relevant instrument is LIN19/047 Item 173, which prescribed the occupation of Motor Mechanic (General) – ANZSCO Code: 321211.
Further, for nominations made before 12 August 2018, reg 5.19(10)(c) requires that certain specified training requirements are met, which in this case does not apply.
The tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument.
Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also 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.
Warren Stooke AM
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.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2023] AATA 555

20 February 2023

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