K Dhother & S.S Dhother (Migration)

K Dhother & S.S Dhother (Migration) [2023] AATA 1586 (30 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  K Dhother & SS Dhother
REPRESENTATIVE:  Mr Natale Menniti (MARN: 1066082)
CASE NUMBER:  1923280
HOME AFFAIRS REFERENCE(S):          BCC2018/869340
MEMBER:Terrence Baxter
DATE:30 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 May 2023 at 8:56am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – banana inspector – financial capacity to employ nominee for two years – financial losses in two years before application made – more recent financial documents provided to tribunal show trading profits – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 9 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, the partnership of K Dhother and SS Dhother, applied for approval on 23 February 2018. The applicant nominated Ms Sukhvir Kaur Sekhon (the nominee) in the position of Banana Inspector. The applicant operates a primary industry business, growing and supplying bananas from a farm located at Garradunga, near Innisfail in Queensland.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the delegate found that the applicant had not established that it had the financial capacity to provide the nominee with full-time employment for at least two years and therefore that the applicant had not established that the nominee would be employed on a full-time basis in the position for at least that period of two years.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 21 August 2019.
Mr Shangara Singh Dhother, a partner of the applicant partnership, appeared before the Tribunal by video conference on 28 March 2023 to give evidence and present arguments. The hearing was a joint hearing with another application for review by the applicant. The Tribunal also received oral evidence from Mr Parvir Dhother, the partnership’s farm manager, by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
The applicant was represented in relation to the review by its registered migration agent, Mr Natale Menniti. The representative attended the Tribunal hearing by video conference.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence presented prior to the hearing
The applicant provided to the Department of Home Affairs (the Department) the following documents:
a.Various business activity statements.
b.A contract of employment dated 6 February 2018 with a position description.
c.Evidence of approval of the nomination by the applicant of Mr Jarmanjit Singh for the occupation of Primary Products Inspectors nec (not elsewhere classified) and a copy of Mr Jarmanjit Singh’s Subclass 187 visa and his contract of employment.
d.A submission of the applicant dated 16 February 2018.
e.An organisational chart.
f.Financial statements for the 2016, 2017 and 2018 financial years.
g.Evidence of registration of the applicant’s business name Garradunga Bananas.
h.An ABN Lookup report in respect of the applicant’s ABN.
i.A letter of advice, Assessment Statement and Form 1404 issued by the regional certifying body (RCB), the Chamber of Industry and Commerce, Cairns dated 23 February 2018.
j.Various codes, manuals and correspondence relating to biosecurity.
k.The applicant’s 2018 tax return.
l.A submission from the applicant’s accountant dated 27 March 2019.
m.Labour market testing evidence.
n.The nominee’s PAYG payment summary for the 2019 financial year and a payslip.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.A submission from the representative dated 3 October 2022.
c.Current ABN Lookup information in respect of the applicant’s ABN.
d.Current ASIC evidence of registration of the applicant’s business name.
e.Financial statements for the 2020, 2021 and 2022 financial years and tax returns for the 2020 and 2021 financial years.
f.The applicant’s Australian Taxation Office activity statement 001.
g.Business activity statements for the period from January 2020 to December 2022.
h.A submission from the applicant dated 1 October 2022.
i.A current organisational chart.
j.Various documents relating to the applicant’s farming operations including rates notice, location map, certificates issued to the applicant, evidence of the applicant’s WorkCover insurance and marketing reports.
k.Evidence of advertising for the position with a recruitment letter, resumes of job applicants and a recruitment report.
l.Current market salary evidence.
m.A submission from the applicant’s accountant dated 29 September 2022.
n.Various documents provided to the Department.
o.Income statements of the nominee for the 2020, 2021 and 2022 financial years together with payslips.
p.An employment contract dated 29 September 2022.
Evidence presented prior to and at the hearing regarding the applicant’s operations
The applicant has been involved in the banana industry since 1979 and has conducted farming operations on the Garradunga farm since 1996. Until 2017, the applicant had grown Cavendish bananas exclusively, but began growing Lady Finger bananas from that time and the new variety has proved to be very successful.
The applicant supplies produce to Coles and Woolworths and other major retail chains. Supply to the major retailers requires certification of the applicant through the Harmonised Australian Retailer Produce Scheme (HARPS) and accreditation by Freshcare, an industry owned farm assurance program.
The applicant has employed the nominee as a Banana Inspector since 2018.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A submission from the representative dated 3 April 2023.
b.Bank statements of the nominee.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1) of the Migration Act 1958 (Cth) (the Act). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed March 2023).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Banana Inspector. On page 6 of the application, the nominee is identified as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ an identified person as a paid employee in the position of Banana Inspector under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
As regs 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant is a trading partnership and has produced evidence from ASIC that its business name is registered. The applicant has also produced evidence that its ABN is active and that it is registered for GST. The applicant has produced financial statements to the 2022 financial year, tax returns to the 2021 financial year and business activity statements to December 2022.
The applicant’s financial statements reveal that it recorded sales in the 2021 and 2022 financial years of $2,020,934 and $1,709,023 respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely a primary production business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Mr Parvir Dhother gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The employment agreement dated 29 September 2022 provides that the position is full-time (38 hours per week). The position is Banana Inspector. The contract provides that the nominee’s employment is permanent. According to the Department’s policy, these provisions satisfy the relevant regulatory requirements. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The salary payable to the nominee under the 2022 employment contract is $55,328 per annum plus superannuation.
Based on the information provided to the Department, the delegate was not satisfied that the applicant had the financial capacity to employ the nominee on a full-time basis for at least two years. The information available to the delegate indicated that the applicant had sustained losses in the 2016 and 2017 financial years.
Almost four years have passed since the date of the delegate’s decision. In that time, the applicant has recorded trading profits and has paid wages and made payments to contractors as follows:

Financial year

    2019

    2020

    2021

    2022

Profit before tax

$197,501

$167,732

$314,185

$220,234

Wages

$77,270

$91,214

$110,709

$135,336

Contractors

$165,391

$242,379

$312,638

$432,308

At the hearing, Mr Parvir Dhother explained the reduction in profit in the 2022 year by stating that the applicant had replanted over 20 acres of bananas and that there is a time lag of nine to 12 months between planting and harvest.
The applicant has operated profitably since the date of the delegate’s decision and has employed the nominee on a full-time basis since that time. The applicant has paid salaries to the nominee of $53,460 and $47,442 in the 2021 and 2022 financial years respectively.
Although the salary to be paid to the nominee in the future slightly exceeds the salary which was paid in recent years, the profits generated by the applicant are more than sufficient to cover any increase. The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Banana Inspector in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant does not have an Australian citizen or permanent resident performing equivalent work at the nominee’s workplace. The salary to be paid by the applicant to the nominee is $55,328 per annum. The employment contract provides that the nominee’s employment terms and conditions are those set out in the contract, the Horticulture Award and applicable legislation including the National Employment Standards in the Fair Work Act 2009 (Cth). The applicant is entitled to leave as set out in the employment contract. The applicant is required to make superannuation payments on behalf of the nominee in accordance with the relevant legislation and the award.
The applicant produced evidence that the rate payable under the relevant classification in the Horticulture Award is $50,072 per annum. The applicant also produced job advertisements for comparable positions in North Queensland with advertised salaries between $50,000 and $60,000 per annum.
The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by the Queensland Chamber of Commerce and Industry, Cairns dated 23 February 2018, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that 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. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4860 (Innisfail, Queensland). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at Lot 237 Dinner Creek Road, Garradunga, Innisfail, Queensland 4860. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
As recorded in the preceding paragraph, the Tribunal finds that the position is located at Lot 237 Dinner Creek Road, Garradunga, Innisfail, Queensland 4860. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control
In its submission to the Tribunal, the applicant stated that it employed the nominee as a Banana Inspector – Shed and it also employed another Banana Inspector in its field operations. The Tribunal enquired why two Banana Inspectors were required by the applicant.
In its written submission, the applicant stated that its ability to supply produce to the large retail supermarkets, rather than through agents in the markets, was critical to the applicant’s profitability. The applicant referred to the outbreak of Panama disease in North Queensland in 2015 and submitted that the employment of two Banana Inspectors, including the nominee, was required to control the disease on the applicant’s property.
At the hearing, Mr Parvir Dhother stated that the jobs of the Field – Banana Inspector and the Shed – Banana Inspector were quite different. He provided details of the different tasks performed by the two inspectors. He stated that one inspector could not perform all the tasks presently performed by the nominee and the other inspector.
Mr Parvir Dhother stated that the applicant employs up to eight full-time employees in the packing shed. He said that, although he personally was the Farm Manager, he was also a qualified auto electrician and that he was unable to handle the tasks which have been performed by the nominee.
The Tribunal notes that the nominee has been employed in the position of Banana Inspector since February 2018. The nominee was appointed to fill a newly created position, following the applicant’s decision to seek to supply product to the major retail chains. Mr Parvir Dhother said that the applicant was required to obtain various forms of accreditation and certification and that the nominee was crucial to ensuring that the applicant met its obligations under those accreditations and certifications. The Tribunal has also had regard to the certificate of the RCB referred to in paragraph 42 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Banana Inspector at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The position was advertised on the Jobactive site in January 2018. There were four applicants for the position other than the nominee. None of those four applicants (other than the nominee) possessed any experience in banana farming, or any farming at all. Resumes of the unsuccessful applicants were provided to the Tribunal.
The Tribunal also places weight on the certificate of the RCB referred to in paragraph 42 above. Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulations 5.19(4)(h)(ii)(D) and (DA) – the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant is Primary Product Inspectors nec (not elsewhere classified) which has the six‑digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 311399 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in the ANZSCO for Unit Group 3113 – Primary Products Inspectors (which includes the nominated occupation) include:
·     inspecting animals, plants and agricultural produce to identify product quality issues, and providing advice to producers
·     auditing and monitoring quality procedures at farms and food handling and processing facilities to ensure compliance with required standards
·     testing samples of produce for quality, size and purity
·     ensuring that required standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles
·     advising primary producers on economic aspects of disease eradication and informing producers and the general public of the health implications of diseases and impurities
·     advising on the identification of pests and diseases and on regulations pertaining to grading, packing and loading of products.
The nominee’s duties according to the employment contract are as follows:
1. Consultancy and planning with farm manager to meet objectives.
2. Responsible for the Quality Check Point for the packed produce.
3. Inspecting and grading Bananas to meet sale requirements.
4. Identify faults in Banana bunch quality to commence action to rectify.
5. Maintaining a knowledge of pests and diseases related to bananas
6. Organise, coordinate and supervise farm hands in banana packing facility.
7. Examining quality of fruit entering packaging facility to ensure optimum quality outputs.
8. Inspects equipment in packaging facility to ensure proper functioning.
9. Ensuring packing facility remains in clean and operational.
10. Organise, coordinate and supervise farm hands in banana packing facility.
11. Training staff as to correct procedures in determining banana quality and grade.
12. Training staff as to the correct procedures of packing of bananas to enhance the banana display.
13. Monitoring the grading bananas as to qualify, grade and presentation.
14. Testing samples of banana for quality, girth and size for packaging.
15. Ensuring all bananas packed for hard green condition meet the hard-green condition requirements.
16. Checking Final packed banana boxes to ensure meets the required standards.
17. Auditing and monitoring quality procedures on farm to ensure compliance with industry standards.
18. Ensuring the chemical storage area in audited kept to regulations.
19. Maintaining crop production records and wastage.
20. Ensuring farm supplies for banana processing and packing facility are sufficient for crop production.
21. Ensuring that required standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles.
22. Ensuring Biosecurity measures are maintained in Packaging facility.
23. Ensure all Visitors are aware of the farm biosecurity practices and all footwear’s, clothing, equipment and vehicles are clean and free from pest and plants material.
24. Ensuring any waste is deposed in correct manner.
25. Explain apply and enforce occupational health and safety standards.
26. Ensure all staff are equipped with PPE and work tools to undertake their assigned duties.
Mr Parvir Dhother gave detailed evidence at the hearing regarding the tasks performed by the nominee. He summarised those tasks as controlling the packing shed operations of the applicant including the control of entrants to the shed to prevent the introduction of diseases, ensuring appropriate presentation of packed produce, maintenance of records of the labelling and dispatch of produce, preparing reports of the class of produce and overseeing the maintenance of the packing machinery in the shed. He stressed that maintenance of fruit quality was essential to enable the applicant to continue to supply the large retail chains.
The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Primary Product Inspectors nec specified by the Minister in the relevant instrument. According to the ANZSCO, the occupation is a Skill Level 2 occupation, requiring that the nominee holds an AQF Associate Degree, Advanced Diploma or Diploma. Evidence has been provided to the Tribunal that the nominee holds a Diploma of Horticulture. The Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 52 above, the Tribunal is satisfied that the business operated by the applicant is located at Lot 237 Dinner Creek Road, Garradunga, Innisfail, Queensland 4860, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 42 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 5.19(4)(h) are 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.
Terrence Baxter
Member

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

[2023] AATA 1586

30 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Financial year	2019	2020	2021	2022
Profit before tax	$197,501	$167,732	$314,185	$220,234
Wages	$77,270	$91,214	$110,709	$135,336
Contractors	$165,391	$242,379	$312,638	$432,308