JT King Finance Pty Ltd (Migration)

JT King Finance Pty Ltd (Migration) [2023] AATA 3900 (18 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JT King Finance Pty Ltd
REPRESENTATIVE:  Miss Andie Minh Lam (MARN: 1172818)
CASE NUMBER:  1928340
HOME AFFAIRS REFERENCE(S):          BCC2018/5744477
MEMBER:Karen McNamara
DATE:18 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 August 2023 at 1:48pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Finance Broker – mandatory licencing, registration and memberships – holder of relevant license from the Australian Securities and Investments Commission (ASIC) – loans to corporate entities – National Credit Code – operation under the licence of a credit licensed holder – credit representative number (CRN) – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
National Consumer Credit Protection Act 2009 (Cth), s 64
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 20 September 2019, to reject the application by JT King Finance Pty Ltd (the applicant) 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 20 December 2018. 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 applicant operates a financial services business providing financial/mortgage brokerage services located at Cabramatta NSW. On 20 December 2018, the applicant lodged an application for an employer nomination approval under the Temporary Residence Transition stream for the position of Mortgage Broker under the occupation of Finance Broker (ANZSCO 222112).
The applicant sponsored Mr Viet Dung Dao (the nominee) for his Subclass 457 Visa, which Department records confirm he held at the time of the nomination application. Department records show that the nominee was granted a 457 Visa on 27 September 2016 to 27 September 2020. Information before the Tribunal shows that the nominee commenced full time employment with the applicant on 15 November 2016 in the occupation of Finance Broker.
Department records show that the applicant was granted approval as a standard business sponsor (SBS) on 30 December 2013 to 30 December 2016 and most recently 5 August 2017 to 5 August 2022.
The delegate refused the application on the basis the nomination did not satisfy regulation 5.19(4) (c ). The delegate was not satisfied that the identified person (Mr Dao) was not, or was not eligible to become, the holder of the relevant license with ASIC, to perform the tasks of the kind to be performed in the occupation of Finance Broker, at the time of application.
The applicant lodged an application for review with the Tribunal on 8 October 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it, the Department file containing all information before the delegate at the time of their decision.
On 31 July 2023, the applicant represented by Mrs Jessica King appeared before the Tribunal, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Viet Dung Dao (the nominee) in the related matter for the Subclass 186 visa (AAT Case file 1930297). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. The position of Finance Broker was identified, a person (Mr Viet Dung Dao) was identified in relation to that position. An occupation in relation to the position was identified (Finance Broker - ANZSCO 222112) as was the subclass and stream to which the nomination relates (subclass 186 visa and Temporary Residence Transition stream). The nomination was accompanied by the applicable training contribution charge (as per reg 5.37). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Finance Broker (ANZSCO 222112) and the date of application is 20 December 2018.
The delegate refused the application on the basis the applicant’s nomination did not satisfy regulation 5.19(4)(c). The delegate noted in their decision that on 24 July 2019, the applicant was invited to provide evidence of licensing for the nominated position. In response the applicant did not include details to confirm that the identified person (Mr Dao) was the holder of, or was eligible to become the holder of, the appropriate license at the time of application. The applicant also did not provide evidence to demonstrate that they were an authorised representative of a licensee at the time of application or that they were eligible to become an authorised representative of a licensee.
The delegate found on the evidence available, the identified person was not, or was not eligible to become, the holder of the relevant license with the Australian Securities and Investments Commission (ASIC), to perform the tasks of the kind to be performed in the occupation of Finance Brooker at the time of application. The applicant did not provide evidence to demonstrate that they were an authorised representative of a licensee at the time of application or that they were eligible to become one.
The Tribunal notes that since the delegate’s decision on 20 September 2019, the applicant has made available to the Tribunal a comprehensive suite of evidence including submissions and supporting material addressing licensing requirements for persons engaged in mortgage broking services. The Tribunal has also had the benefit of discussing with the applicant at the hearing, the delegate’s decision, and ASIC regulatory requirements as applicable to this matter. Having afforded careful consideration to the applicant’s submissions and supporting evidence, the Tribunal has formed a different view to the delegate and accepts the evidence presented by the applicant attesting to the licensing requirements to perform tasks associated with the nominated occupation of Finance Broker as applicable in the circumstances of this case.
The Tribunal accepts that the identified person is carrying out the tasks of a Mortgage Broker under the occupation Finance Broker (ANZSCO 222112). Finance/Mortgage Brokers are regulated by ASIC. Persons carrying out brokering loans/credit assistance are required to hold a credit licence or authorised under s64 of the National Consumer Credit Protection Act 2009 (National Credit Act).
Credit activity is defined in the National Credit Act and includes providing credit contracts and consumer leases, securing payment obligations by related mortgages and guarantees, and providing credit services. A person will only be engaging in credit activities if their conduct relates to credit contracts or consumer leases to which the National Credit Code applies.[1]
[1] ASIC regulatory Guide 203 - Do I need a credit licence
Section 5 of the National Credit Code at Schedule 1 of the National Credit Act provides
‘ Provision of credit to which this Code applies
(1) This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of precontractual obligations) is proposed to be entered into:
(a) the debtor is a natural person or a strata corporation; and
(b) the credit is provided or intended to be provided wholly or predominantly:
(i) for personal, domestic or household purposes; or
(ii) to purchase, renovate or improve residential property for investment purposes; or
(iii) to refinance credit that has been provided wholly or predominantly to purchase, renovate or improve residential property for investment purposes; and…..’
In evidence before the Tribunal, the applicant states that whilst continuing to service a small number of personal loans, the predominant business activities of the business shifted in 2018 to corporate clients. Loans to corporate entities are not classified as consumer credit and therefore are not regulated by the National Credit Act, as such Mr Dao is not required to hold a credit licence, nor required to be authorised as a credit representative at the time of application in December 2018.
Although the evidence supports that Mr Dao was not required to be authorised as a credit representative as the business was not predominantly engaged in personal, domestic or household loans, the business may occasionally service loans falling under the National Credit Code. The applicant therefore made application for Mr Dao be registered as a credit representative of a licenced partner, the Friendly Finance Network Pty Ltd.
For consumer loans the applicant took a business decision to operate under the licence of a credit licensed holder, Friendly Finance Network Pty Ltd. The applicant has provided to the Tribunal a copy of the licensing partnership agreement signed and dated by the parties 4 April 2018 and a letter from the Friendly Finance Network dated 17 July 2023 attesting to registration/licence requirements for mortgage brokers and the licencing arrangement with the applicant for the purpose of consumer loans.
On 24 July 2019, Mr Huynh, the Director of the Credit Licence holder applied to ASIC to appoint Mr Dao as a credit representative, and notified ASIC of his details. The following day ASIC approved the authorisation and allocated Mr Dao a credit representative number. The Tribunal has before it an email from ASIC dated 25 July 2019, authorising Mr Dao as a credit representative and allocation of a credit representative number (CRN).
Having consideration to the entirety of the evidence before it, the Tribunal is satisfied that whilst the identified person was not required to hold a licence or registration, his subsequent granting of registration as a credit representative supports that at the time of application on 20 December 2018, the identified person would have been eligible to become the holder of the registration as a credit representative, as he met the requirements of such.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal that indicates the nominator does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the Tribunal is satisfied that r.5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
There is no evidence before the Tribunal, that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
Accordingly, the Tribunal is satisfied that r.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.
Department records show that at the time the application for approval of the nominated position was made, the nominee held a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)).
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 Finance Broker (ANZSCO 222112).
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). The relevant instrument specifying the occupation in this instance is IMMI 18/049.
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
The Tribunal is satisfied that:
·The nominated occupation of Finance Broker is listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and has the same 4-digit ANZSCO occupation unit group code (ANZSCO 2221) as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted;
·The nominated occupation of Finance Broker is not listed in IMMI 18/049 which was the legislative instrument in force at the time the application was made so there are no applicable caveats or exemptions for the occupation as set out in IMMI 18/049. However, the applicant is exempt from reg 5.19(5) ( c) by the provisions of IMMI 22/038 as he held a subclass 457 visa on 18 April 2017.

There is no evidence before the Tribunal which would lead it to find that the applicant is not genuinely performing the tasks of a Finance Broker and it is not aware of any information known to Immigration that indicates that the nominee is not genuinely performing 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 20 December 2018. The relevant instrument made under reg 5.19(6) is IMMI 22/038. Having regard to the terms of that instrument, the Tribunal finds that for persons such as the nominee who on 18 April 2017 held a subclass 457 visa, the qualifying period is 2 years.
Evidence before the Tribunal shows that the nominee was granted a subclass 457 Visa on 27 September 2016 to 27 September 2020. Information before the Tribunal indicates that the nominee commenced employment with the applicant in November 2016 and has continued this employment on a full-time basis. The Tribunal has before it the nominee’s PAYG/Income Statements from 2017 to 2023 financial years, confirming that the nominee since November 2016 has received full time remuneration.
Based on this evidence, the Tribunal is satisfied the nominee has been employed in a full-time capacity by the applicant as a Finance Broker since November 2016 whilst holding a Subclass 457 visa.
Accordingly, the Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the four-year period immediately before this nomination application was made.
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.
Department records show that the applicant was the last standard business sponsor to identify the identified person in an approved reg 2.72 nomination.
Based on the material provided to the Tribunal, including financial statements, Company Tax returns, BAS returns, ASIC Company details, bank statements, licensing partnership agreement and Agent agreements, the Tribunal is satisfied the applicant is actively and lawfully operating a financial services business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035): reg 5.19(7). The Tribunal is satisfied that the nominated occupation of Finance Broker is not an exempt occupation.
In considering whether the application for approval identifies a need for the nominee to be employed in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions by the applicant and representative. In support of the need for the position, the applicant has provided evidence in the form of written submissions dated 11 December 2018 and 25 July 2023, in addition to a position description indicating the objective of the role and the contribution of the position to the applicant’s business.
At the hearing, the applicant told the Tribunal the need to employ the nominee in the position of Mortgage Broker is essential to the operations of the business as the nominee is the only full time Mortgage Broker employed by the applicant. The nominee has worked for the applicant for almost seven years and has proven to be competent and has contributed to the recent growth in revenue through his experience of the industry.
As the business operates as a finance brokerage, it cannot lawfully operate without a Finance/Mortgage Broker therefore the ongoing employment of the nominee is crucial to the ongoing operations of the business. Additionally, in support of the genuine need for the employment of the nominee, the Director of the business has other business interests which require her to travel extensively and therefore is reliant upon the nominee to manage the broking aspects of the business.
The Tribunal is satisfied that the material and evidence provided by the applicant, including the applicant’s oral evidence, organisation chart and position description attesting to the nominee’s role as Finance/Mortgage Broker, support there is a genuine need for the nominee to be employed in the position of Finance/Mortgage Broker under the nominator’s direct control. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s operational requirements, its size and activities, the tasks to be undertaken in the position, the nominee's experience, qualifications and employment history with the applicant.
The Tribunal is satisfied on the evidence before it, that there is a business need for the position which supports the genuine need for the identified person to be employed in the position under the direct control of the nominator.
On the totality of evidence before it, the Tribunal is satisfied that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator and the need is genuine.
Given the above findings, the Tribunal is satisfied that rr.5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument 18/035):reg 5.19(7). The Tribunal is satisfied that the nominated occupation of Finance Broker is not an exempt occupation.
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 has had regard to the applicant’s financial information as provided to the Tribunal, the nominee’s contract of employment and information contained on the Department and Tribunal files in regard to the annual market salary rate as determined by the applicant’s submissions.
The nominee’s most recent contract of employment signed and dated by the parties on 1 July 2023, sets out the terms and conditions of employment and stipulate that the agreement ‘ will commence on 1 July 2023 and continue for 2 years, renewable and ongoing.’ The contract stipulates a remuneration package of $70,000 per year (exclusive of superannuation) with hours of work 38 hours per week. There is no term excluding an extension of the period of employment. Based on this information, the Tribunal is satisfied that the nominee will be employed for at least two years and that the terms and conditions of employment will not exclude the possibility of extending the period of employment.
In considering whether the business has the capacity to pay the annual market salary rate for the occupation (in this instance $60,000 per annum) to the nominee for at least two years, the Tribunal has taken into consideration evidence before it, including the applicant’s most recent financial statements, documents submitted to the ATO and bank statements, which support the applicant has met payroll and operating costs.
The Tribunal has considered the information before it, including the applicant’s most recent (2022/23) financial statements, 2023 BAS returns and a letter from the external Accountant dated 22 July 2023. The 2023 financial statements record income in excess of $600,000 with proportionate profit and positive net equity.
The Tribunal has also taken into consideration evidence before it, to support that the nominee has been continuously employed by the applicant in the nominated position since November 2016. The business bank account statements, nominee’s PAYG/Income statements and superannuation statements, support the nominee has received regular salary payments and employer superannuation contributions have been paid.
The Tribunal has afforded consideration to the financial evidence before it and on balance, is satisfied the applicant 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.
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 IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to IMMI 18/033: reg 2.72(15)( c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the Temporary Skilled Migration Income Threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings for 2021/22 financial year was $56,016 plus superannuation. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.
The Tribunal has considered the evidence before it and is satisfied that the applicant in determining the annual market salary rate (AMSR) for the position, undertook salary market research including reference to information published on Payscale, Jora and Job Outlook websites, in addition to job advertisements posted on Seek.com
At the time of application, the applicant’s submissions included Payscale showing the average salary for a Mortgage Broker as $58,742 with a range of $39,862 to $91,244. Job Outlook showed that the medium full-time earnings for a Finance Broker is $1,400 per week ($72,800 per annum). Job advertisements for similar positions posted on Seek.com.au showed a salary range of $50,000 to $70,000 per annum.
In recent submissions to the Tribunal, the applicant has provided salary research information form Jora which shows the average salary for a Mortgage Broker in Sydney ranges from $70,000 to $110,000. Seek shows the average annual salary for a Mortgage Broker is $70,000 to $90,000. Job advertisements posted on Seek show the salary range from $65,000 to $90,000 and posted on Fuse recruitment $70,000 to $100,000.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.
This amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b). Relevant to this matter at the time this application was lodged on 20 December 2018, IMMI 18/033 specified this as $53,900. The Tribunal is satisfied that the annual market salary rate exceeds the relevant TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.
Information before the Tribunal including the nominee’s Contract of Employment dated 1 July 2023 show that the nominee’s annual earnings commencing on 1 July 2023 are $70,000 per annum exclusive of superannuation. The nominee’s taxation records, and business bank statements show that the nominee’s annual earnings in the 2021/22 financial year were $56,016 plus superannuation. The applicant provided the nominee’s Income statement for period 1 July 2022 to 20 May 2023 which shows gross payments of $51,740. In conjunction with bank statements which show net salary payments of $888.92 per week post 20 May 2023 to 30 June 2023, the applicant received approximately $57,000 in salary payments during the 2023 financial year.
Accordingly, the Tribunal finds as per the most recent contract of employment, that the nominee’s annual salary rate will not be less than the annual market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as evidenced in the nominee’s taxation records and business bank statements, exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
For these reasons the requirements of r.2.72(15) are satisfied.
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 employment contract dated 1 July 2023, sets out the terms and conditions of employment and indicate that the nominee’s salary will be $70,000 per annum and hours of work 38 hours per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal has received copies of the nominee’s PAYG’s/Income statements and payslips confirming that the nominee has received regular remuneration by the applicant. Superannuation information provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence, that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that there is no evidence before the Tribunal to indicate that there is 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.

100. 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)
101. 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.

102. Given the above findings, the Tribunal is satisfied that the applicant satisfies reg 5.19(5)(q).
103. 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
104. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.

Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

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

[2023] AATA 3900

18 August 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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