LUCRETIA LIGHTING PTY LTD (Migration)

LUCRETIA LIGHTING PTY LTD (Migration) [2023] AATA 4336 (19 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LUCRETIA LIGHTING PTY LTD
REPRESENTATIVE:  Mr John Kotsifas (MARN: 0323893)
CASE NUMBER:  2111644
HOME AFFAIRS REFERENCE(S):          BCC2020/1615941
MEMBER:Mary Sheargold
DATE:19 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 December 2023 at 7:37am
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – position of Customer Service Manager – genuine need for the employment – updated financial information – previous employment of the nominee – profitability and growth of the business – financial capacity to employ the nominee for at least two years – terms and conditions of employment no less favourable – decision under review set aside
LEGISLATION
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration Act 1958, s 140, 245, 359, 360
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, rr 1.03, 2.57, 2.72, 5.19, 5.37
Income Tax Assessment Act 1997
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 2021 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 25 May 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(k) of the Regulations because the delegate was not satisfied that the applicant had a genuine need for the nominated position within its operations.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 16 October 2023, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated information in relation to its business. A response was due by 30 October 2023. On 26 October 2023, the representative wrote to the Tribunal requesting an extension of time of 7 days from 30 October to gather certain financial documents being prepared by the applicant’s accountant. The Tribunal granted the extension until 6 November 2023 as requested.
On 6 November 2023 the applicant’s representative provided the following documents in response to the Tribunal’s request for updated information:
·detailed written submissions from the representative;
·a copy of the current and historical company extract for Lucretia Lighting Pty Ltd from the Australian Securities and Investments Commission (ASIC) dated 26 October 2023;
·a copy of the Tribunal’s decision record in relation to the nominee’s Subclass 457 visa application;
·copies of Notices of Assessment for the nominee from the ATO for each of the financial years ending on 30 June 2017 to 30 June 2023 inclusive;
·copies of PAYG summaries for the nominee for the financial years ending on 30 June 2017, 2018 and 2019;
·extracts from the nominee’s banking statements from July 2017 to December 2019 evidencing salary payments made by the applicant;
·a copy of the nominee’s superannuation statement;
·copies of Business Activity Statements for each quarter from July 2021 to June 2023;
·copies of the company tax returns for the applicant for the financial years ending on 30 June 2021 and 2022;
·a copy of the detailed financial statement, balance sheet, and profit and loss statement for the applicant’s business for the financial year ending on 30 June 2022;
·a copy of the tax invoice from the Department evidencing payment of the SAF levy dated 25 May 2020;
·a copy of the nominee’s Subclass 457 visa grant letter dated 26 May 2016;
·a copy of the applicant’s most recent standard business sponsorship approval notification dated 7 October 2016;
·a copy of the Tribunal’s decision (differently constituted) in respect of a refused nomination application under reg 2.72 in respect of the applicant for the nominated position of Customer Service Manager;
·an organisational chart for the applicant’s business;
·copies of business cards for the nominee showing his delegation as ‘Customer Service Manager’;
·samples of work emails sent and received by the nominee in his role of Customer Service Manager;
·a copy of the applicant’s employment contract with the nominee dated 10 October 2019;
·an updated contract of employment and job description for the nominee dated 1 July 2022; and
·a 41 paragraph statement from Shiling Liu, the director of Lucretia Lighting Pty Ltd outlining the genuine need for the position of Customer Service Manager in the business, dated 3 November 2023.
In reaching its findings, the Tribunal has reviewed and considered all of these documents, as well as the documents in the Departmental file.
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.
The Tribunal has reviewed the documentation in the Department’s file and is satisfied that the application was made on the approved internet form. Within that form, the applicant has provided the relevant s.245AR(1) certification, the position has been identified, a person and an occupation relating to the position have been identified, and the visa subclass and stream to which the nomination relates have been identified. The Department’s letter to the applicant dated 25 May 2020 confirms that the application fee has been paid.
The application identified the annual turnover for the business to be $303,293. The applicant has provided a copy of the invoice and payment receipt from the Department dated 25 May 2020 showing that it paid $3,540 accompanying its application form. The application fee for a nomination in the ENS TRT non-regional stream is $540. Therefore, the $3,000 paid represents the Skilling Australians Fund levy for nominations for ENS visas, being the one off payment amount for businesses with an annual turnover of less than $10,000,000.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with it.
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 Victoria, the relevant occupation is Customer Service Manager, ANZSCO 149212, and the date of application is 25 May 2020.
The Tribunal is not aware of any mandatory licensing, registration, or professional memberships required for persons to work as Customer Service Managers in Victoria.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or Victoria relating to employment.
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.
As set out above, the Tribunal is satisfied that the applicant paid the required training contribution charge at the time the application was made. Therefore, no training contribution debts have accrued.
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 nominee was granted a Subclass 457 visa sponsored by the applicant on 26 May 2016. By reference to the provided Tribunal decision dated 27 April 2016 remitting the nominee’s Subclass 457 visa application to the Department for reconsideration, the Tribunal is satisfied that that Subclass 457 visa was granted on the basis of the satisfying the Standard Business Sponsorship stream in cl 457.223(4).
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Customer Service Manager.
Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).
Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is LIN 19/049. The relevant instrument specifying exemptions to this requirement is LIN 22/038.
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
The nominated occupation of Customer Service Manager is listed in the ANZSCO Dictionary at 149212. The Tribunal has considered the documents provided by the applicant and documents in the Departmental file and is satisfied that the nominee was granted his Subclass 457 visa to work in the role of Customer Service Manager, ANZSCO 149212, and so the Tribunal is satisfied that the occupation has the same four digit occupation code as the occupation in respect of which the nominee held his Subclass 457 visa.
The Tribunal notes that the occupation of Customer Service Manager, ANZSCO 149212 is not listed in the medium and long term skills shortage list set out in LIN 19/049. However, the Tribunal has considered the applicability of section 8 of LIN 22/038 to the nominee and notes that as he was a person who held a Subclass 457 visa on 18 April 2017, this occupation is exempt per reg 5.19(5)(c).
The Tribunal is satisfied that there is no information known to Immigration that indicates that the nominee was not genuinely performing the tasks of the occupation of Customer Service Manager, ANZSCO 149212.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:
·a Subclass 457 visa in the Standard Business Sponsorship stream, or
·a Subclass 482 visa in the Medium-term stream, or
·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.
Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.
In this case, the nomination application was made on 25 May 2020. The relevant instrument made under reg 5.19(6) is LIN 22/038. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument.
The nominee was granted a Subclass 457 visa on 26 May 2016, which was in effect until 26 May 2020. The nomination application was made on 25 May 2020, one day short of 4 years after the nominee’s Subclass 457 visa was approved. Accordingly, the requirement in reg 5.19(5)(e) is met.
At the time the application was made, the applicant provided the Department with copies of the nominee’s PAYG statements and ATO income tax returns for the financial years ending on 30 June 2017, 2018, and 2019, as well as evidence from the nominee’s bank statements demonstrating the requisite salary deposits between July 2017 and December 2019, and evidence that the nominee’s superannuation was paid. Accordingly, the requirement in reg 5.19(5)(f) is met.
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.
Departmental records confirm that the nominator was the standard business sponsor who last identified the nominee in a nomination made under s 140GB of the Act. The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h), or r.2.68(i).
The applicant has provided the Tribunal with evidence of its registration and current status with ASIC, BAS, detailed financial statements, company tax summaries, relevant insurances, and updated information demonstrating the activities of the business at present.

Based on the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in 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): reg 5.19(7).
The Tribunal is satisfied that the occupation of Customer Service Manager does not fall within those specified in the relevant instrument made under reg 2.72(13), and so has considered whether the application identified a need for the nominee to be employed in the position under the nominator’s direct control, and if so, whether the need is genuine.
The Tribunal is satisfied that the application identified a need for the applicant to employ a Customer Service Manager and that the nominee, Cheng Long Xie, was identified as the person to fill that role. The question as to whether that need is genuine is one where the Tribunal relies on the updated evidence provided at the time of its decision, including the extensive samples of contracts and the statement provided by the company director Mr Liu, to find in the applicant’s favour.
In his detailed statement to the Tribunal dated 3 November 2023, Mr Liu highlights that in order for the applicant to maintain and increase its market share in a competitive industry, a Customer Service Manager is needed to oversee the company’s service function. The applicant’s business has a multi million dollar annual turnover and services large, high end clients. In his statement, Mr Liu highlights that in early 2021, he was contacted by the Department to see if he still wished to continue with this nomination application given the nominee had been stood down due to Covid lockdown restrictions that severely impacted the applicant’s business during 2020 and 2021. Mr Liu indicated his surprise at being encouraged to withdraw this application in those circumstances.
The Tribunal notes that in this particular case, the impacts of the Covid-19 pandemic bear little relevance to the Tribunal’s consideration of the issues before it. The nominee’s Subclass 457 visa ceased in May 2020, and the Tribunal is bound to consider the genuineness of the nominated position at the time of the Tribunal’s decision, not at the time of the delegate’s decision.
The genuineness of this position within the applicant’s business was questioned prior to approving the nomination for the nominee’s Subclass 457 visa and the Tribunal notes that it has previously resolved this issue in the applicant’s favour. The Tribunal has considered the totality of Mr Liu’s statement and the documentary evidence provided including the organisational chart, the work samples and interim reports prepared by the nominee, and the financial documents regarding the applicant’s business.
The profitability and steady growth of the business is a highly relevant consideration when contemplating whether the position nominated is genuine. The Tribunal has reviewed the financial documents provided for the applicant’s business and notes the submission is consistent with the data in those documents. Based on all the evidence available at review, the Tribunal is satisfied that the applicant has demonstrated that at the time of the Tribunal’s decision, the applicant has a genuine need to employ the nominee to work as the Customer Service Manager in its retail lighting business.
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): reg 5.19(7).
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.
As noted above, the occupation is not exempted by virtue of instruments made under reg 2.72(13). The Tribunal has reviewed the nominee’s contract of employment with the applicant and notes that it is an employment contract for a full time role for at least 4 years. Given the intent for the employment to be for ‘at least’ 4 years, the Tribunal is satisfied that the possibility of an extension is not precluded, and that the nominee will be employed full time for at least two years.
The nominee’s current salary is $70,000 per annum plus superannuation. The Tribunal has considered the annual market salary rate for the position and is satisfied that this remuneration level is consistent, and the Tribunal is satisfied that based on the financial documents provided for the business, the applicant has sufficient growth and profitability to continue to maintain the nominee’s salary, that has been paid consistently for over 10 years.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(l) does not apply and regs 5.19(5)(m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
Section 5 in IMMI 18/033 specifies the annual earnings for the purposes of r.2.72(15)(b) to be $250,000. 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.
As set out above, the applicant has provided evidence with its application supporting the method used to determine the annual market salary rate for the nominated position of Customer Service Manager, ANZSCO 149212, being reference to salary surveys from websites such as PayScale and market research with advertisements for similar positions. The Tribunal is satisfied that the calculation of the nominee’s salary of $70,000.00 plus superannuation has been determined in the manner required. For these reasons the requirements of reg 2.72(15)(c) are met.
The TSMIT is $53,900, so the salary of $70,000 per annum that has been offered to the nominee exceeds this amount. For these reasons the requirements of reg 2.72(15)(d) are met.
Again, as set out above, the Tribunal is satisfied that this remuneration arrangement gives to the applicant a salary in excess of the average salary expected to be paid to a Customer Service Manager in Australia. For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee has not been offered any non-monetary benefits as part of the employment contract. Therefore, the proposed remuneration represents a cash figure. Therefore, the annual earnings will still be above the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Tribunal has considered the terms and conditions of the nominee’s employment set out in the employment contract, and notes that the nominee’s employment conditions appear to accord with or exceed the requirements set out in the National Employment Standards.
Therefore, based on the evidence before it, the Tribunal is satisfied that the nominee’s terms and conditions of employment 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.
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)
Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
The Tribunal is satisfied that all the information described above has been provided both to the Department with the application, as well as to the Tribunal with the review application. The Tribunal notes that all that information is necessary for the Minister or his delegate to make any findings of fact regarding those matters, and so it is clear that such information is required to be provided by the applicant. All that information is required, and all that information has been provided.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mary Sheargold
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
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 4336

19 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction