KRISHNA KANT PTY LTD ATF THE TRUSTEE FOR THE DNP TRUST (Migration)

[2019] AATA 304

KRISHNA KANT PTY LTD ATF THE TRUSTEE FOR THE DNP TRUST (Migration) [2019] AATA 304 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  KRISHNA KANT PTY LTD ATF THE TRUSTEE FOR THE DNP TRUST

CASE NUMBER:  1616938

DIBP REFERENCE(S):  BCC2015/3981629

MEMBER:Susan Trotter

DATE:15 January 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 15 January 2019 at 1:13pm

CATCHWORDS

MIGRATION – sponsorship nomination – direct entry nomination stream – genuine position – Business’s only restaurant manager – continued employment with nominated position – difficulty in finding local talent – lawful and operating business – regional business – strong business record – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 245AR, 360

Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection[1] (the Minister) on 26 September 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19(4) of the Migration Regulations 1994 (the Regulations).

   [1] Now the Minster for Immigration, Citizenship and Multicultural Affairs

2. The applicant applied for approval on 21 December 2015 nominating the position of Cafe or Restaurant Manager (ANZSCO[2] code 141111) to be undertaken by Mrs Palak Patel (the nominee) for its business, Bombay Bliss Indian Restaurant which operates in Little Mountain, Caloundra, Queensland and was described in the application as being in the Accommodation and Food services industry. The nominee, a citizen of India, held a Subclass 573 Higher Education Sector visa at the time of the nomination application.

   [2] Australian and New Zealand Classification of Occupations

3. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant had identified a need for a paid employee to work in the position under the direct control of the nominator.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 13 October 2016.

7. The applicant was represented in relation to the review by its registered migration agent.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite a representative of the applicant to appear before the Tribunal.

9. 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

10. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Background

11. Submissions on behalf of the applicant, supported by documentary evidence, include as follows:

    (a)  The Bombay Bliss Group operates six Bombay Bliss restaurants on the Sunshine Coast in Queensland and one Bombay Bliss restaurant in Springfield, Queensland.

    (b)  At the time of the nomination application, the applicant company was operating two Indian restaurants, Bombay Bliss in Caloundra and Bombay Bliss in Beerwah with the nominee working on a full-time basis across both restaurants.

    (c)  Bombay Bliss, Beerwah was sold to a staff member in 2016 as part of a restructuring process, but with the Beerwah restaurant remaining as part of the Bombay Bliss group.

    (d)  At the time of application, the employment of at least three Restaurant Managers for the two restaurants was in line with the operating hours of seven days per week, which hours were often exceeded due to functional or seasonal peak time. The overall combined hours for both restaurants were the equivalent of three full-time employees in the position of Restaurant Manager.

    (e)  The nominated position became available due to the transfer of a long-term employee to a new Bombay Bliss Restaurant (at Maroochydore).

    (f)    The nominee is now the sole full-time Restaurant Manager for Bombay Bliss, Caloundra, however, Restaurant Managers from other restaurants within the Bombay Bliss Group cover additional hours on weekend and school holidays.

    The application is compliant: r.5.19(4)(a)

12. 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 Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

13. Having regard to documentation in the file of the Department of Immigration and Border Protection[3] (the Department), the Tribunal is satisfied that the application was made on the relevant form.[4] The application relates to a visa in a Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(3)(b)). The applicant provided the relevant s.245AR(1) certification signed and dated 29 March 2016.[5] The requirements of r.5.19(2) and consequentially also r.5.19(4)(a)(i) are therefore satisfied.

    [3] Now the Department of Home Affairs

    [4] Commencing at page 100 of the Department file

    [5] Page 96 of Department file

14. The delegate was not satisfied that the application for approval identified a need to employ a nominated employee in the position of Cafe or Restaurant Manager under the applicant’s control for the purposes of r.5.19(4)(a)(ii).

15. 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; attest or prove to be as claimed or asserted.’[6] On that view, which is consistent with that reflected in Departmental policy,[7] a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[8] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/ process of a more administrative nature, such that r.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 r.5.19(4)(a)(ii) and, for example, r.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 a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.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 r.5.19(4)(a)(ii), and the requirement in relation to this application to also consider r.5.19(4)(h)(ii)(B), the Tribunal considers this issue is more appropriately considered under r.5.19(4)(h)(ii)(B) later in these Reasons.

    [6] Macquarie Dictionary online

    [7] PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).

    [8] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (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 r.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 r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal therefore exercise cautions in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

16. For the purposes of r.5.19(4)(a)(ii), the Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4)(a) as a whole. The nomination application was accompanied by a statement of Krishna Kant Pathak, a director of the applicant, dated 2 December 2015, stating, among other things, that ‘There is a vacancy for a Restaurant Manager with our business due to the relocation of one of our Restaurant Managers to our Maroochydore Restaurant which operates under a different business structure … Due to the re-shuffle of the more senior and experienced staff, there is a vacancy that needs to be filled’. Submissions of 21 December 2015 lodged with the application include that a restaurant manager is needed by the applicant’s business for the continuing success of the applicant’s restaurants so as to allow senior management to focus on a new project and to allow for shift rotations. The Tribunal is satisfied based upon this statement provided with the nomination application that the application for approval identifies a need to employ a nominated employee in the position of Restaurant Manager under the applicant’s control. Regulation 5.19(4)(a)(ii) is therefore satisfied.

17. Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(a) overall are therefore met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

18. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

19. The evidence is that at the time of the nomination application, the applicant operated two Indian restaurants, both named Bombay Bliss, located respectively in Caloundra and Beerwah in Queensland with the Beerwah restaurant having since been sold and with the nominee continuing to work in the Caloundra restaurant.

20. Based on documentation provided by the applicant, and searches undertaken by the Tribunal, including ASIC Company Searches, Business Name Searches, Business Activity Statements and Financial Statements and letters dated 24 November 2015 and 3 October 2018 from the applicant’s accountant C3 Accounting & Advisory, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, specifically an Indian restaurant at Caloundra in Queensland.

21. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

22. 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.

23. There is no evidence before the Tribunal to suggest that the applicant is involved in labour hire activities.

24. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Terms of employment of the visa holder: r.5.19(4)(d)

25. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and that the terms and conditions of that employment do not expressly exclude the possibility of an extension of the period of employment.

26. The applicant provided the Department with a copy of an employment contract between the applicant and the nominee dated 7 December 2015,[9] which states, among other things, that the employment is offered for a period of no less than two years from the date of commencement for the position of Restaurant Manager with duties and responsibilities as listed in an attachment to the contract.

    [9] From page 67 of the Department’s file

27. It is now over two years since the delegate’s decision and documents provided by the applicant, show that the nominee has continued to be employed in the nominated position by the applicant.

28. The Financial Statements of the applicant over recent years in evidence before the Tribunal include the following information:

Year ended 30 June 2016	Year ended 30 June 2017
Gross Profit on trading	$395,997	$282,047
Total expenses	$404,372	$266,308
Profit	($8,236)	$20,085

1. Although financial figures are not yet available for the year ended 30 June 2018, Business Activity Statements provided for that period show that the business is continuing to enjoy significant sales.

2. Further, letters dated 24 November 2015 and 3 October 2018 from the applicant’s accountant C3 Accounting & Advisory, opine as to its view that the applicant has financial capacity to meet all employment obligations in relation to the nominee for a minimum period of two years in the position of Restaurant Manager.

3. Having regard to the totality of the evidence and the matters discussed above, the Tribunal is satisfied that the applicant possesses sufficient financial capacity to provide two years full-time employment to the nominee in accordance with the proposed terms and conditions of employment and that the nominee will be employed on a full-time basis in the position for at least two years. Regulation 5.19(4)(d)(i) is therefore satisfied.

4. The Tribunal is further satisfied, based on the employment contract referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment further (with, notably, the nominee’s employment still now continuing with the applicant over three years after the nomination application). Regulation 5.19(4)(d)(ii) is therefore satisfied.

5. Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(d) overall are therefore met.

   No less favourable terms and condition of employment: r.5.19(4)(e)

6. 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.

7. The organisational chart of the applicant provided at the time of the nomination application stated that there were three restaurant managers between the two restaurants in Caloundra and Beerwah. The most recent organisational chart shows one Restaurant Manager, the nominee, for the Caloundra restaurant, the only business now operated by the applicant.

8. The evidence before the Tribunal shows that the nominee is the only employee now carrying out the role of full-time Restaurant Manager at Bombay Bliss, Caloundra however, other Restaurant Managers from the Bombay Bliss Group cover additional hours on weekends and school holidays.

9. The employment contract for the nominee states a base annual salary of $41,080 per annum plus 9.5% superannuation for a total salary package of $44,982.60.

10. Information from suggests that full-time Café and Restaurant Managers earn around $900 per week (that is $46,800 per annum). Information from suggests an average salary of $54,557 per annum for a Restaurant Manager within the range $43,924 to $66,625. The nominee’s overall salary is just within the range suggested by However, notably, the relevant position is in regional Australia and it would not be unexpected that a position in regional Australia would likely attract a salary at the lower end of the range. Further, at the time of the nomination application, the nominee was also carrying out work at Beerwah, where the applicant employed another Restaurant Manager.[10] Pay details for that Restaurant Manager[11] have been provided showing that that employee was on a salary package of $41,876.91 (inclusive of superannuation),[12] a salary slightly less than the nominee. Taking these matters into account, the Tribunal is satisfied that the salary provided to the nominee is 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.

    [10] Based on the nominee being the only foreign employee of the applicant at the time of application, this employee was an Australian employee – see page 104 of Department file.

    [11] Who on the evidence would cover additional hours on weekends and school holidays for the nominee at Bombay Bliss, Caloundra.

    [12] Payslip appearing at page 52 of Department file showing a salary of $17,439.15 (inclusive of superannuation) to 29 November 2015 which equates to $41,876.91 per annum.

11. Accordingly, the requirement in r.5.19(4)(e) is met.

    No adverse information known to Immigration: r.5.19(4)(f)

12. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meanings given in rr.1.13A and 1.13B.

13. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.

14. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

15. 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.

16. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with the relevant workplace relations laws.

17. Accordingly, the requirement in r.5.19(4)(g) is met.

    Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)

18. Regulation 5.19(4)(h) contains a number of alternative requirements. As the nominated position is located in Little Mountain, Caloundra, Queensland, and the postcode of 4551 is specified as regional in the relevant written instrument in force at the time the nomination application was made, IMMI 13/049,[13] r.5.19(4)(h)(ii) requires that:

    (a)  the position and nominator’s business is located in regional Australia (rr.5.19(4)(h)(ii)(A) and (E));

    (b)  there is a genuine need for the paid position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));

    (c)  the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));

    (d)  the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (r.5.19(4)(h)(ii)(D)),

    (e)  a specified regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)(F)).

    Position and business located in regional Australia: rr.5.19(4)(h)(ii)(A) and (E)

    [13] The Tribunal notes that there is some uncertainty as to the applicable instrument given the most recent instrument IMMI 18/037 repealed previous instruments without any saving provisions and yet specifically states it only applies to applications made on or after 18 March 2018. In any event, for the purposes of this application the current instrument and its predecessors specify the postcode locality of 4551 as being regional.

1. The Tribunal is satisfied that the position and the nominator’s business is located in Little Mountain (Caloundra), which, as already canvassed, given a postcode of 4551 is in regional Australia as specified in the relevant instrument.

2. Accordingly, the requirements in rr.5.19(4)(h)(ii)(A) and (E) are met.

   Genuine need to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)

3. The applicant has nominated the position of Cafe or Restaurant Manager (ANZSCO code 141111) for its business.

4. As canvassed at paragraph 14 of these Reasons, the delegate was not satisfied that the application for approval identified a need to employ a nominated employee in the position of Cafe or Restaurant Manager under the applicant’s control for the purposes of r.5.19(4)(a)(ii). However, for the reasons canvassed in paragraphs 15 and 16 of these Reasons, the Tribunal has concluded that whether there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control is more properly considered under r.5.19(4)(h)(ii)(B).

5. As to the underlying issue of whether there is such a need, the delegate was not satisfied that there was a need for a paid employee in the position, including because of reference to a third Restaurant Manager (Duty Manager) being required for both the Caloundra and Beerwah restaurants with the delegate noting that a shift or duty manager position is not equivalent to a café and restaurant manager because one restaurant manager should not report to another restaurant manager. In that regard, the delegate was also referencing an organisational chart provided by the applicant, seemingly suggesting that the person in the nominated position reported to, and was positioned below, the two other identified restaurant managers who were not also identified as duty managers.

6. The applicant’s submission in this regard included as follows:

   (a)  the nominee does not report to another restaurant manager and that has never been the scope of the role at any time.

   (b)  the organisational chart originally submitted was misleading, with an error in communication as to whom the nominee reports, with an updated organisational chart provided showing that the nominee, as Restaurant Manager of the Caloundra restaurant, reports directly to the director of the applicant and also liaises directly with the Key Accounts Manager for all Bombay Bliss restaurants on the Sunshine Coast, with the nominee not reporting to any other Restaurant Mangers.

   (c)  The nominee has always performed the duties of a Restaurant Manager for the applicant and has always been the only present Restaurant Manager whilst on duty. Further, she performs all duties of a Restaurant Manager independently within the restaurant while on duty, with a detailed list of her duties provided commensurate with the duties described in ANZSCO for a Restaurant Manager, rather than a Duty Manager who would report to another manager and not have overall unsupervised control over the restaurant’s operations at all times, as the nominee does while on duty.

   (d)  At the time of the nomination application, the employment of at least three restaurant managers for the two restaurants was in line with the operating hours of seven days a week with combined hours of 140 hours per week for the three positions.

   (e)  The nominee is more than ever required to fill the full-time position as a Restaurant Manager at Bombay Bliss, Caloundra with the business now having traded for numerous years and there being a need for a Restaurant Manager to allow for senior management to focus on new projects and it being crucial for business operations to continue employing the nominee as a full-time Restaurant Manager.

7. The Tribunal accepts that the applicant has a successful chain of Indian restaurants and, relevantly, in relation to this application, a proven successful Indian restaurant at Caloundra on the Sunshine Coast which, given the long trading hours, not insignificant turnover and requisite staff numbers, would understandably require the position of Restaurant Manager under the applicant’s direct control as the entity running the Bombay Bliss, Caloundra restaurant.

8. Overall, having regard to the evidence, the Tribunal is satisfied that the applicant has a genuine need to employ a paid employee to work in the nominated position under the applicant’s direct control.

9. Accordingly, the requirements of r.5.19(4)(h)(ii)(B) are met.

   The position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C))

10. The evidence before the Tribunal is that the position was advertised and after investigation it was determined that the nominee was found to have the most suitable skills, qualifications and experience. In particular the job requires appropriate qualifications (which the nominee holds, given she has a Diploma of Management) and previous experience with Indian cuisine and the nominee, due to her experience, skills and qualifications, was deemed to be the ideal candidate for the position.

11. The evidence before the Tribunal included a job advertisement placed by Bombay Bliss Indian Restaurant Caloundra dated 19 November 2015. It was submitted on behalf of the applicant that the restaurant is constantly advertising for cooks, chefs and restaurant managers and has a commitment to employing local labour. Further, after advertisement of the role it was determined that the nominee was the most suitable candidate for the position given her formal qualification in management, her extensive experience in the hospitality industry and four years’ experience with the applicant.

12. The Tribunal has also taken into account the certification provided by the Chamber of Commerce & Industry Queensland on 16 December 2015 that the position could not be filled by an Australian citizen or permanent resident living in the same local area.

13. Having had regard to the totality of the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

14. Accordingly, the requirement in r.5.19(4)(h)(ii)(C) is met.

    The tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (r.5.19(4)(h)(ii)(D))

15. The ANZSCO occupation description states that a Cafe or Restaurant Manager (ANZSCO code 141111) ‘Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.’

16. The tasks of the Unit Group 1411 Café and Restaurant Managers are shown within ANZSCO as including:

    ·planning menus in consultation with Chefs

    ·planning and organising special functions

    ·arranging the purchasing and pricing of goods according to budget

    ·maintaining records of stock levels and financial transactions

    ·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    ·conferring with customers to assess their satisfaction with meals and service

    ·selecting, training and supervising waiting and kitchen staff

    ·may take reservations, greet guests and assist in taking orders

17. The tasks of Restaurant Manager with Bombay Bliss, Caloundra are stated to include:

    ·Overseeing the restaurant and its specific areas;

    ·Management of the restaurant and coordinating the different areas;

    ·Work closely with other team members, Chefs, Cooks, and front of house staff;

    ·Customer service including making reservations, greeting guests, assisting in the taking of orders and communicating with customers to ensure satisfaction with meals and service;

    ·Effective communication with the Director of the restaurant to ensure the successful flow of the business operations;

    ·Accurately record sales and banking;

    ·Investigate and report any discrepancies to business owner

    ·Recruit, induct and train staff members (Bombay Bliss Caloundra functions at the Head Officer for recruitment within the Bombay Bliss Group);

    ·Maintain stock control; and negotiate with suppliers;

    ·Plan menus and functions in consultation with Chef;

    ·Organise and coordinate functions;

    ·Shift planning for all staff members;

    ·Writing rosters;

    ·Perform and delegate all key duties of other positions in the restaurant;

    ·Comply with Work Health and Safety regulations and maintain these throughout the restaurant;

    ·Be on call for any emergencies of unexpected store requirements.

18. Based on the evidence before it, the Tribunal is satisfied that the tasks of the nominated position correspond to those of the occupation of Cafe or Restaurant Manager (ANZSCO code 141111), an occupation specified by the Minister in an instrument in writing for this sub-subparagraph, in Schedule 1 of IMMI 17/058,[14] which is as required an occupation listed in ANZSCO with a skill level of one, two or three, being a skill level of two for this occupation.

    [14] The Tribunal notes that IMMI 17/058 specifically states that it applies to applications made before 1 July 2017 but not finally determined and the latter IMMI 18/045 only applies to applications made after 18 March 2018.

19. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.

    A specified regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)(F))

20. The Tribunal finds that the Chamber of Commerce & Industry Queensland (an approved Regional Certifying Body specified in the relevant instrument at that time, IMMI 13/049, certified on 16 December 2015 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee.

21. Accordingly, the requirements of r.5.19(4)(h) are met.

    Conclusion

22. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Susan Trotter
    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 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)     both 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;

    (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 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).