KANGQIAO GROUP PTY LTD (Migration)

KANGQIAO GROUP PTY LTD (Migration) [2023] AATA 2172 (13 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  KANGQIAO GROUP PTY LTD
CASE NUMBER:  1925010
HOME AFFAIRS REFERENCE(S):          BCC2019/1632551
MEMBER:Alan McMurran
DATE:13 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 June 2023 at 10:45am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Customer Service Manager – no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation – position associated with the nominated occupation is genuine – no adverse information– actively and lawfully operating a business in Australia –– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140, 245, 359, 360
Migration Regulations 1994, r 5.19
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 6 September 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 2019 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 nominator, KANGQIAO GROUP PTY LTD, applied for approval on 2 April 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition (TRT) stream. The applicant nominated the occupation of Customer Service Manager (ANZSCO 149212). The nominee, Ms Yun Liang, (“the nominee”) has lodged a related application for a Subclass186 TRT visa. A review of the refusal of that visa for want of an approved nomination is also before the Tribunal[1].
[1] Tribunal case 1928633
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(k), because there was no ‘genuine need’ for the position and therefore reg 5.19(4) of the Regulations was not satisfied.
The applicant was unrepresented both before the Department and for this review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Background
On 20 September 2022, the Tribunal sent a letter to the applicant inviting information in response. The applicant responded within the time for giving its responses and provided multiple documents together with written submissions. These are referred to where relevant below.
On 21 March 2023, the Tribunal, then constituted, sent the applicant a written invitation to attend a combined video hearing for 2.5 hours together with the review of the visa refusal.
The applicant responded stating that the applicant was unable to attend the hearing but had provided relevant responses and submissions and asked the Tribunal to ‘assess’ the application.
On 24 May 2023, the applicant clarified in writing to the Tribunal that it gave its ‘consent’ to the Tribunal deciding the application on the papers and without a hearing.
There was a further exchange of emails with additional submitted documents and submissions as to whether the application included an occupation as required by a nominated instrument (referred to below), and which the Tribunal accepts on the current legislation means the occupation as nominated should proceed.
The Tribunal has therefore proceeded to determine the review under s 360(3) and without a hearing and on the basis s 360(2)(b) applies.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in TRT stream 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.
In this case, the visa subclass identified in the application is Subclass 186 in the employer nomination scheme, TRT stream. The nominee as the identified person is a ‘transitional 457’ worker at the time of application, the Subclass 457 visa being the last substantive visa[2] held by the nominee at the time of the nomination application on 2 April 2019.
[2] 457 visa granted 22 September 2017
The Tribunal finds from the available information from the Department that:
·     the application was made in accordance with approved form 1395 (Internet);
·     the applicant has identified the position for the nominee, as a customer service manager working full-time in the applicant’s business in Sydney;
·     the applicant has identified the nominee as the person relative to the position nominated;
·     the applicant has identified the occupation of Customer Service Manager (ANZSCO 149212);
·     the applicant has identified the visa subclass, Subclass186, and the stream, TRT, to which the nomination relates;
On the available information from the Department, as the application was made on or after 12 August 2018[3], the Tribunal finds it is satisfied that the application was accompanied by the nomination training contribution charge, as receipted by the Department at time of lodgement[4], and where the applicant had identified the ‘annual turnover’ necessary in order to calculate the charge and had provided supporting documentation.
[3] Lodged 2 April 2019
[4] Department acknowledgement 2 April 2019
The applicant has also provided in the application the certification stating the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
The Tribunal finds on the available information from the Department and documents submitted with the application, that there is no adverse information known to Immigration about the nominator or a person associated with the nominator, and relevant to the person’s suitability as an approved sponsor or a nominator.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Customer Service Manager (ANZSCO 149212), and the date of application is 2 April 2019.
On the available information, there is no requirement for an individual 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 by the nominee in the nominated occupation.
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 information or evidence before the Tribunal that the applicant does not have a satisfactory record of workplace compliance in the State where it operates. The Department similarly has not provided any information which might contradict such a finding.
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.
There is no evidence before the Tribunal that the nominator owes a debt due to the Commonwealth under s 140ZO of the Act relating to the nominator training contribution charge or any related late payment penalty.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a Subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.
The Department information shows the nominee as the identified person last held a substantive visa, Subclass 457, for the occupation, granted 22 September 2017, and which ceased on 9 October 2019, and which was current at the time of application. The applicant was granted a Bridging visa A which states it becomes active after 21 November 2017 pending consideration of her Subclass 186 visa application and which is in effect at the time of this decision.
The Tribunal finds that the Subclass 457 visa was granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)). The nominee is also one of the three types of person mentioned in the regulation and meets the requirements of reg 5.19(5)((a)(vi), which requires that the nominee’s Bridging visa was granted on the basis that the nominee has applied for a Subclass 186 visa.
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 Customer Service Manager (ANZSCO 149212).
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).
The occupation nominated in this instance is an occupation with 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 visa was granted. Therefore reg 5.19(5)(b) is met.
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 (the nominee) in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c).
Is the ‘identified person’ (the nominee) ‘exempt’ from the reg 5.19(5)(c) requirement as to the specification of the nominated occupation?
The relevant instrument specifying the occupation in this instance is LIN 19/049, in force from 11 March 2019. The instrument does not include the nominated occupation of Customer Service Manager.
The issue arises however in the context of this application whether there is a legislative instrument which exempts the identified person (the nominee) from the operation of paragraph 5.19(5)(c).
LIN 22/038 in effect from 17 March 2022 made changes to reg 5.19(8)(b), which specifies persons who are exempt from the operation of paragraph 5.19 (5)(c. The instrument states the exemption provision at par 8 as follows:
Exemption
(1) For paragraph 5.19(8)(b) of the Regulations:
(a) a specified person; and
(b) commencing on 1 July 2022—a person mentioned in subsection (2) is exempt from the operation of paragraph 5.19(5)(c) of the Regulations.
(2) A person who, after 18 April 2017:
(a) applied for a subclass 457 visa that was subsequently granted;
(b) has been in Australia for a period of at least 12 months between 1 February 2020 and 14 December 2021; and
(c) at the time of application, is employed by a person who is actively and lawfully operating a business in Australia.
On the available information from the Department records, the nominee was granted her first Subclass 457 visa on 22 April 2015, and which was extended on 22 September 2017[5] to expire on 22 September 2019, with the same employer (the applicant nominator).
[5] By application made 12 October 2016
The Department movement records show that the applicant has been in Australia for a period of at least 12 months between 1 February 2020 and 14 December 2021 and at the time of application, is employed by a person who is actively and lawfully operating a business in Australia.
By way of explanation, the Explanatory Memorandum accompanying LIN 22/038 relevantly explains, in accordance with the following extracts, as follows:
“Certain temporary skilled visa holders may be eligible to become a permanent resident in Australia. This occurs if their employer makes an application to the Minister under regulation 5.19 of the Regulations for the visa holder to be nominated for a position in Australia and, once that application is approved, the visa holder subsequently applies for a Subclass 186 (Employer Nomination Scheme) visa (subclass 186 visa) or Subclass 187 (Regional Sponsored Migration Scheme) visa (subclass 187 visa). Under the subclass 186 visa and subclass 187 visa, applicants can be nominated and apply for a number of streams for permanent residency, including a subclass 186 visa in the Temporary Residence Transition stream (TRT visa)……..
Subsection 4(2) captures a person who, on 18 April 2017, held or applied for a subclass 457 visa that was subsequently granted (a specified 457 visa holder). This cohort was previously specified in IMMI 18/052, which self-repealed on 18 March 2022. As the Government announced on 18 April 2017 that the subclass 457 visa would cease and be replaced by the subclass 482 visa, transitional arrangements were put in place at the time for those subclass 457 visa holders and applicants to continue to access permanent residence through a subclass 186 visa or subclass 187 visa. IMMI 18/052 formed part of these transitional arrangements, so that this cohort could meet the new eligibility requirements under subregulation 5.19(5) of the Regulations that had been introduced by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262).”

The dates relating to the grant of two Subclass 457 visas to the nominee and her subsequent application for a Subclass 186 visa, align with the transitional arrangements as anticipated by the new instrument, and explained in the Memorandum.
The Tribunal finds that the nominee applied for her Subclass 457 visa after 18 April 2017, and which was subsequently granted. The nominee further has remained in Australia for the whole of the specified period from 1 February 2020 and has remained employed by the applicant actively and lawfully operating.
For these reasons, the Tribunal finds the nominee is a ‘specified person’ in accordance with the instrument, and that the occupation (and therefore the applicant) is exempt from meeting the designated occupation requirement under reg 5(19)(c), for an occupation listed in a relevant instrument.
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).
ANZSCO describes the occupation and the tasks as follows:
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
- AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
Tasks Include:
Occupations:
- developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
- ensuring operational efficiency within a call centre
- providing direction and feedback to team members and assisting with recruitment
- managing, motivating and developing staff providing customer services
- planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
- liaising with other organisational units, service agents and customers to identify and respond to customer expectations
- may work in a call centre
- 149211 Call or Contact Centre Manager
149212 Customer Service Manager
The Tribunal has had regard to the documents and information submitted for this review. That includes the information from the Department files for both the applicant and the nominee[6] and the recent submissions to the Tribunal. The nominee submitted a copy of her Diploma of Business Administration obtained in accordance with the Australian Qualifications Framework, from Wise Education Group Pty Ltd and dated 9 August 2016.[7]
[6] BCC 2019/632649
[7] See nominee’s Department file BCC 2019/632649
Not a great deal of information was otherwise made available to the Department supporting the application and which went to consideration of this particular issue.
On 22 May 2020, the applicant made a lengthy and detailed submission to the Tribunal (without invitation) about the business and the work role and performance of the nominee, attempting to address the finding by the delegate. The Tribunal finds it is not necessary to repeat the whole of that submission here. The submission was primarily responding to the issue on the delegate’s refusal relating to the ‘genuineness’ of the position. In summary the applicant argues that the nominee is performing the tasks, not in a call centre, but in a fashion to help grow and develop the applicant’s tourism business at more than a ‘lower skill’ level.
The information discloses that the business operates in the tourism environment with an emphasis on foreign visitors, especially from China. The submission points to fact that the nominee is not related to the persons employing her and is not an owner or director. The applicant company has been operating in the tourism services’ space continuously since 2015. The submission attributes growth and development in the business to the design and implementation of strategies adopted by the nominee to improve business efficacy and communication with its clients. Those submissions are supported with relevant documents illustrating the business activity and the nominee’s role.
The Tribunal has considered the detailed submissions and supporting documents including emails from the nominee and photographic submissions of documentation evidencing her work. The Tribunal has no reason not to accept that evidence.
The Tribunal finds it is satisfied on the available information and recent submissions 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. Accordingly, the requirement in reg 5.19(d) is also met.
Given the above findings, the Tribunal is satisfied in summary 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.
The evidence is and the Tribunal finds that the identified person, Ms Liang, held a Subclass 457 visa in the Standard Business Sponsorship stream for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made.
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 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). On the available information, the Tribunal finds that the provisions relevant to reg 5.19(5)(g) do not apply in this instance. The applicant however, must satisfy reg 5.19(5)(f).
The nomination application was made on 2 April 2019.The relevant instrument made under reg 5.19(6) is IMMI 18/052. Having regard to the terms of that instrument, the Tribunal finds that it is applicable.
Regulation 5.19(5)(f) as noted above requires that the nominee in this instance was employed in the position to which the Subclass 457 visa was granted, and on a full-time basis by the former employer and with the employment being undertaken in Australia, for a total period of at least 3 years, and during the period of 4 years immediately before the nomination application was made (not including any periods of unpaid leave).
The Tribunal is satisfied on the evidence that the requirement in reg 5.19(5)(f) is met, and that the nominee was employed full-time and for the relevant period as required by the regulation.
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 information shows that the applicant was granted a sponsorship from 28 July 2016 valid to 28 July 2021. The Tribunal is satisfied that the nominator was the last standard business sponsor to identify the identified person in an approved reg 2.72 nomination.
The applicant has submitted its current financial statements for the FYE ending June 2022 and a current ASIC extract for the nominator company. An ABN current record obtained by the Tribunal shows further that the applicant remains a registered entity and active at the time of decision and has been active since 1 May 2013.
The Tribunal is satisfied on this evidence that the applicant is actively and lawfully operating a business in Australia .
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument 18/035.
The Tribunal finds in this instance that the occupation specified is not exempt from the ‘genuine need’ requirement.
The Tribunal has had regard to the information available for this review which includes the delegate’s decision, the Regulations, the documents submitted with the application and the recent submissions. Those include:
·     The applicant’s 28 page submission lodged with the application, and detailed annexures
·     Further 12 page submission to Tribunal dated 22 May 2022
·     Financial statements from 2026 and 2022
·     The nominee’s employment agreement
·     ANZSCO description of tasks and the applicant’s description of the role
·     Applicant’s submission as to the ‘job description’
·     Department Policy guide
The Tribunal finds it is satisfied on the information that the applicant has identified a need to employ a person in the role of Customer Service Manager. The case law establishes that in considering the issue of ‘genuine position’ it is necessary to look at the context of the business and the particular role of the nominee. The general principle established is that the requirement is not that the position itself must be genuine or ‘needed’, rather it is that the position associated with the nominated occupation must be genuine. That is, the position must exist and also be what it purports to be.[8]
[8] See Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30 and the referenced cases
Policy provides that: “the ‘genuineness’ assessment does not equate to a commercial decision as to whether it makes good business sense to hire a particular worker or pay them a particular salary. It is, however, the department’s role to prevent the misuse of the TSS visa program through the creation of non-genuine positions.”
In other words, the application should show that there is a clear alignment between the business operation and its activity, and the occupation role performed by the nominee, which role reflects a majority of those tasks which would ordinarily be associated with the occupation as identified by ANZSCO.
In this instance, the applicant has gone to considerable lengths to explain the role performed and how it relates to the business activity of the applicant in its tourism space. The Tribunal has found it unnecessary to set out in full the lengthy and detailed submissions.
The submissions argue that the nominee is now well-established in the business in the role and that her continued involvement is necessary to help grow and develop the business, particularly post-pandemic. The evidence from the nominee’s emails with clients and the advertising material produced discloses that the nominee is active in the role and that customer development with active policies and involvement by the nominee is taking place.
The Tribunal does not accept as was found by the delegate that there is no evidence of “business expansion” as such, and which led to the decision to find the position was not genuine. The question is whether the role exists and is being performed, not whether the business is expanding as such, and which issue (expansion and allocation of resources) would be more relevant to commercial decision-making by the applicant based on the business acumen and intentions of its owners. If the position exists and is being performed with the majority of tasks for the occupation, then the requirement can be met, irrespective of the stated future goals and intentions of the business owners. Generally, such ‘stated intentions’ are unhelpful and carry little weight in determining whether an occupation role actually exists and which are often nothing more than self-serving statements.
The Tribunal finds in this instance the nexus between the role performed by the nominee as a Customer Service Manager aligns with the submissions and supporting evidence as to the business operation. The Tribunal finds it is satisfied in this case that the applicant has demonstrated a genuine need for the nominee’s continued employment in the nominated occupation as a Customer Service Manager, and that the role is what it purports to be. The Tribunal is further satisfied on the information that the nominee’s role is directly supervised and controlled by the business owner.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (instrument IMMI 18/035).
Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The Tribunal finds that the occupation is not exempt from reg 5.19(5)(l). The Tribunal has had regard to the available information, including the written employment contract dated 20 June 2017, together with the financial evidence produced for this review.
The Tribunal finds that the written terms and conditions of the nominee’s employment include that she will continue to be employed for a period of at least four years from the time of nomination approval and subsequent visa grant, at a starting salary (in 2017) of $66,000 per annum, plus superannuation and subject to review. The agreement does not exclude the possibility of extending the period of employment. The stated ‘’probation’ period in the agreement is not relevant and appears to be a ‘standard’ contractual provision, which does not apply to visa applications, and which period in any event has elapsed.
In determining the current market salary rate, the applicant submitted at the time of application information available from the internet for the occupation. The nominee’s salary on offer from the applicant at that time was $66,000 per annum or $1270 per week. This was above the then average of approximately $1,057.00 per week[9] ($54,964p.a.) for the occupation.
[9] SEEK advertising attached to the application shows average $55,000-$59,000 p.a.
Currently available information as to the salary for the occupation in Australia varies considerably, depending upon location and the nature of the business and on the basis of various job description websites[10]. Top salaries in large scale enterprises range between $94,000 and $126,000[11], whereas the average (and which takes into account smaller businesses) is more in the range averaging at $70,574 in 2023[12]. The lowest range appears to be around $67,000 in 2023[13].
[10] Indeed, Seek, Payscale
[11] Salary.com
[12] Payscale
[13] Salary Explorer
The financial statement submitted for the FYE June 2022, shows a modest revenue of $784,000. It is clear form the report that the applicant is in ‘recovery’ mode in terms of its financial performance following the pandemic. This is compared with declared revenue from sales in 2016, in an earlier growth phase, of $1,267,624.08. The Tribunal finds that there is no issue arising from the available financial information[14] that the applicant does not have the capacity to pay the nominee’s salary and entitlements.
[14] Includes submitted PAYG information
The Tribunal has considered the available information and financials and is satisfied that the applicant will continue to employ the nominee in the nominated occupation and according to the contract with her, and for the agreed salary, albeit at the lower end of the salary range identified from the available information.

100. 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.

102. 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.
103. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. 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 finds on the available evidence, which it has accepted, that the nominee’s annual earnings are in a sum currently of $66,000 per annum (excluding superannuation) which is less than the amount specified (currently $250,000) in the relevant instrument, IMMI 18/033 for reg 2.72(15)(b). As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

105. The Tribunal is not aware that there is a relevant Award applicable to the occupation in this case for a customer service manager. The applicant has determined the salary on the basis of current information available from the internet, which in turn has collated information from a number of sources reflecting advertised positions for the role and across a number of industries, as at mid-2022, and which has not been updated.
106. On its own inquiry as to information available from the same internet-based sites and referred to above, at the time of decision, the Tribunal finds it is satisfied that in the proper context of the applicant’s business, the applicant’s total earnings (inclusive of superannuation) at $72,600 is within the salary range for the occupation. For these reasons the requirements of reg 2.72(15)(c) are met.
107. The Tribunal finds on the available evidence that the nominee’s salary rate of $66,000 per annum is not less than the TSMIT (currently $53,900) For these reasons the requirements of reg 2.72(15)(d) are met.
108. The Tribunal is satisfied on the available information that the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, as determined by reference to the currently available salary information for the occupation available from various internet sources, as the best indicator in this instance for the minimum annual market salary rate[15]. For these reasons the requirements of reg 2.72(15)(e) are met.
[15] Approximately $1280.00 per week
109. The Tribunal finds that the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT ($53,900).
110. For these reasons the requirements of reg 2.72(15)(f) are met.
111. There is a large variation in the information available as to the annual market salary rate for the occupation in this case, ranging from the lowest amount of $68,000 (inclusive of superannuation) upwards, to an average of approximately $70,032 (across the whole of Australia)[16]. Sydney salaries are higher, but lower in the suburbs compared to the CBD.
[16] Payscale- Customer Service Manager Salary in Australia | PayScale
112. On the available information, the Tribunal finds on balance it is satisfied that the applicant is paying the market rate for the occupation at the very lowest end of the range. The Tribunal does not conclude therefore that the rate payable for the nominee is inconsistent with Australian labour market conditions relevant to the occupation, particularly in the tourism sector at present where that industry was particularly hardest hit during the pandemic, and as the applicant’s financial history submitted demonstrates.
113. To the extent there is any variation in the nominee’s market salary rate as payable, with higher salaries currently reported by various Internet sites such as Indeed and Seek and Payscale, the Tribunal finds in the context of this application and the tourism business in a post-pandemic environment, it is reasonable to disregard those differentials.
114. For these reasons the requirements of reg 2.72(15)(g) are met.
115. 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)
116. 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.
117. The Tribunal finds there is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for an Australian citizen or permanent resident performing equivalent work at the same location.
118. 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)
119. 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).
120. Regulations 5.19(k) to (n) concern a genuine need for the identified person to be employed 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.
121. The Tribunal requested information from the applicant by way of 359(2) letter issued 20 September 2022. The applicant has responded with multiple submissions in order to answer the requests, not repeated here, but which the Tribunal has considered. The Tribunal has carefully reviewed all that information.
122. The information has been touched upon already in these reasons but includes satisfactory information that the Tribunal finds and accepts that the applicant has:
·     Identified a genuine need for the identified person, the nominee, to be employed in the position under the nominator’s direct control;
·     Evidenced employment of the nominee on a full-time basis for at least 2 years; and
·     Evidenced that the terms and conditions of employment do not include an express exclusion of extending the period of the employment; and
·     Shown from its financial evidence that the nominator’s business has the capacity to employ the identified person for at least 2 years and pay the nominee at least the annual market salary rate for the occupation each year.

123. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
Conclusion
124. 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
125. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alan McMurran
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 2172

13 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice