LYNP PROJECTS & CONSTRUCTIONS PTY LTD (Migration)

[2019] AATA 297

LYNP PROJECTS & CONSTRUCTIONS PTY LTD (Migration) [2019] AATA 297 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LYNP PROJECTS & CONSTRUCTIONS PTY LTD

CASE NUMBER:  1618667

DIBP REFERENCE(S):  BCC2016/705651

MEMBER:Susan Trotter

DATE:14 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 14 January 2019 at 4:27pm

CATCHWORDS

MIGRATION – nomination approval – direct nomination scheme – nominated position – Administration Manager – related to ANZSCO Corporate Service Manager role – business structure – partnership agreement – aspect of self sponsorship – lawful business – salary consistent with industry standards – compliance with work and training requirements – decision set aside

PRACTICE AND PROCEDURE – decision made on the papers

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 24 October 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

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

2. The applicant applied for approval on 19 February 2016, nominating the ‘Position of Administration Manager, Occupation (ANZSCO 132111[2]) of Corporate Services Manager’ to be undertaken by Mrs Nathalia Pironi Yaghdjian (the nominee) for its business, Lynp Projects and Constructions, which was described in the application as being in the construction industry. The nominee, a citizen of Brazil, held a Subclass 600 visitor visa at the time of the nomination application.

   [2] Australian and New Zealand Standard 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, then 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)(d)(i) because the delegate was not satisfied that the applicant had demonstrated the ability to provide a full-time permanent position for the nominee for at least the next two years as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 November 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 Migration Act 1958 (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 applicant commenced operations in July 2015 following company and Australian business name registration in February 2014. It is linked to an existing successful company of the same name in Brazil, which company has been in operation for over 20 years in Brazil and has a team of architects, draftsmen and project managers. It is the intention that the business in Australia will grow to become as successful, if not more so, that the Brazilian counterpart.

    (b)  The managing director of the applicant has other business interests such that an administration manager was required for the growth and development of the applicant business.

    (c)  The nominated position was advertised in November 2015 for 30 days. Four people were short-listed but upon investigation, it was considered that all had insufficient experience either in a management role or in the industry.

    (d)  The nominee is instrumental in the management of the Brazilian office of LYNP Projects and Constructions and was therefore an ideal candidate so the position was then offered to her.

    (e)  At the time of the nomination application, the business had no employees, just directors, with incoming work initially outsourced to the Brazilian company with the intention of employing Australia engineers, architects, draftspersons and other supporting administrative staff as the business grew.

    (f)    The applicant was originally located at Pelican Waters (postcode 4551) and is now operated from offices at Warana (postcode 4575).

    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 23 March 2016.[5] The requirements of r.5.19(2) and consequentially r.5.19(4)(a)(i) are therefore satisfied.

    [3] Now the Department of Home Affairs

    [4] Commencing at page 116 of the Department file

    [5] Page 110 of Department file

14. The application for approval identifies a need to employ a nominated employee in the position of Administration Manager, which is identified as an occupation of Corporate Services Manager in ANZSCO, under the applicant’s control. Regulation 5.19(4)(a)(ii) is therefore satisfied.

15. 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)

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

17. The evidence is that the applicant operates a residential, commercial and industrial projects and constructions company based in Queensland. Documentation provided by the applicant, and searches undertaken by the Tribunal, including Australian Securities and Investigations Commission (ASIC) company searches, business name searches, business activity statements and financial statements, show that the applicant was first registered with ASIC and with an Australian business name from 4 February 2014, becoming registered for GST on 1 July 2015, and it continues to operate the same business to date. Based on these documents and searches, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

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

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

19. 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.

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

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

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

22. 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.

23. The applicant provided the Department with a copy of an employment contract between the applicant and the nominee dated 15 January 2016[6], which states, among other things, that the employment is offered for a period of no less but not limited to two years barring unsatisfactory performance, misconduct or operational requirements, for the position of Administrator Manager, with a Job Description as set out in Schedule 1 to the contract.

    [6] From page 50 of the Department file

24. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because they were not satisfied that the evidence demonstrated the nominee would be employed on a full-time basis in the nominated position for at least two years. In particular, the delegate noted that the business bank statements provided indicated that the majority of transaction are internet banking transfers of funds (from the same nominated accounts) with minimal business expenses and/or income transactions with the business activity statement for the first six months of the 2015/2016 financial year revealing sales figures of only $8,997 with no wages paid during that period. It was further noted that no financial reports had been provided detailing the overall health of the business, nor copies of tax returns to substantiate a business income and wage expenditure. Further, the delegate was not satisfied that the relationship between the Brazilian company and the Australian company had been demonstrated to support claims that the Brazilian company had agreed to provide cash flow support to the Australian business if required during the establishment phase of business operations in Australia. The delegate was therefore not satisfied that the business had the financial capacity to cover the nominee’s basic wages and superannuation for the next two years as required.

25. The applicant, supported by relevant documentation, submitted as follows in this regard:

    (a)  The business was established by Dr Richard Sarafian and Mr Levon Yaghdjian from the same named company in Brazil with the intention of establishing a new business entity in Australia utilising the resources of the Brazilian business until the Australian business was self-supporting. A business plan and bank statement from the Brazil company were provided with the initial application incorporating this and other background information.

    (b)  The business has shown strong growth since 1 July 2017 and is in line with its accountant’s projections and opinion letter provided at the time of application. In this regard, a letter from Asset Accounting Pty Ltd dated 8 January 2016 confirms that it acts for the applicant as its accountant and business advisor and states that, having reviewed the financial position of the business, finds that it had the financial capacity to meet all employment obligations in regard to employing the nominee for a minimum of two years in the position of Administration Manager.

    (c)  Typical of any new start-up company, the business needed to establish itself within the construction industry nurturing new contacts.

    (d)  At the time of nomination, the applicant had only one director and did not employed any staff as it was a new start-up operation with promises of work and an inability to find suitably qualified staff that met the criteria for a multilingual manager to deal with both Australian and Brazilian workers, given the Brazilian company’s operations were integral to the successful use of resources in the first three to five years of opening.

    (e)  As at November 2017, a number of staff are now employed including a head architect & director (Mr Levon Yaghdjian), various Australian citizens /permanent residents (a civil engineer, an urban planner, a contractor and a general office contractor), an architect and engineer on Working Holiday visas from Chile and Italy, a soil testing contractor and a number of floating draftsperson contractors (approximately 10).

    (f)    The business has an Australian director, a guarantee from the parent company to give financial support during the establishment phase, a business plan and an accountant’s confirmation of ability to pay wages for two years.

    (g)  To date the nominee has been provided with casual work to the value of $40,000 to $50,000 per annum and the grant of a visa to the nominee will mean the applicant will be in a position to take on more lucrative contracts and be able to employ the nominee full-time.

    (h)  The latest financial statements of the applicant clearly show a strong growth in revenue earnings in line with the initial predictions.

    (i)    Upon commencement of trading from 1 July 2015, the business was not able to find suitable staff and was held back without having a Services Manager in place. Because of the company’s strong links with the Brazilian parent company, knowledge of both languages and a sound understanding of the practices in both Brazil and Australia was needed.

    (j)    The business has now been operating successfully since 1 July 2017 despite various lucrative contracts being delayed pending visa finalisation for the nominee. The business currently employs staff as contractor because of the ongoing uncertainty due to the nomination refusal, however it has substantial ongoing work and future proposals, with details provided of contracts for ongoing projects (valued at $1.3 million) and numerous future project proposals (valued at $3,050,125) demonstrating ongoing viability.

26. Documents provided by the applicant, including recent payslips, show that the nominee has been employed casually since that time (with total earnings of $50,000 in the 2016 financial year and $41,666 in the 2017 financial year).

27. 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
Income	$17,190	$134,5560
Total expenses	$55,419	$90,743
Profit	($38,229)	$43,813

1. It is now over two years since the delegate’s decision and the applicant has continued to operate its business, with growing profits in line with initial predictions. The Tribunal has had regard to the totality of the evidence and the matters discussed above, including the projected and achieved growth of the business, current work-in-progress and future projects available to the applicant. 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.

2. 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. Regulation 5.19(4)(d)(ii) is therefore satisfied.

3. 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)

4. 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.

5. On the application for nomination form submitted to the Department, the applicant stated that the nominated position would be located in Pelican Water, postcode 4551, and would attract a base rate of pay of $75,000 per annum with guaranteed annual earnings of $82,125. It further supplied the Department with a signed employment contract dated 15 January 2016.

6. The evidence is that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

7. The Tribunal is satisfied that the salary to be provided to the nominee is consistent with industry standards[7], and finds that the terms and conditions of employment applicable to the nominated position are no less favourable than those that would be provided to an Australian citizen or permanent resident, performing equivalent work in the same workplace at the same location.

   [7] As demonstrated by reference to resources such as Payscale and Job Outlook provided by the applicant

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

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

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

10. 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’.

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

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

12. 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.

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

14. 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)

15. Regulation 5.19(4)(h) contains a number of alternative requirements. As the nominated position is located in Warana, Queensland, and the postcode of Warana, 4575, is specified as regional[8] in the relevant written instrument in force at the time the nomination application was made, IMMI 13/049[9], 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)

    [8] As is also the postcode of 4551, the postcode of the locality from which the applicant previously operated the business

    [9] 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 4575 as being regional

1. The Tribunal is satisfied that the position and the nominator’s business is located in Warana, which, as already canvassed, given that it has a postcode of 4575 is in regional Australia as specified in the relevant instrument, IMMI 13/049.

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 Administration Manager correlating to the occupation of Corporate Services Manager (ANZSCO code 132111) for its business.

4. In considering whether there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal had regard to the Department’s policy (as set out in its Procedures Advice Manual (PAM3)) as at the time of nomination. In relation to possible issues arising with self-sponsorship, PAM3 stated as follows:

   Self-sponsorship and nomination of ‘related or connected’ individuals

   An individual undertaking a business activity (as a sole trader) cannot nominate themselves. This is on the basis that the employment must be based on a​​ contractual relationship between an employer and employee. In the case of a sole trader nominating themselves, such a contractual relationship cannot exist because the employer and the employee would be the same person (individual).

   If an individual incorporates a company with themselves as the sole shareholder/director, a separate legal entity (a proprietary limited liability company) is created. The company could then nominate the shareholder/director, because the employer (nominator) and employee (nominee) are separate legal entities. In these circumstances, the individual would, in theory, be able to execute an employment contract:

   • as the employee in​​ their personal capacity on the one hand and
   • as the employer in their capacity as the director of the company on the other.

   Partnership

   The rules around a partnership being able to nominate a partner for an employer sponsored visa are based on partnership law and common law principles. The fundamental principle is that the partnership is not separate from its partners.

   Each State/Territory has enacted its own partnership legislation:

   ·Partnerships operating in SA, NT, ACT and TAS cannot nominate a partner for an employer sponsored visa because, in these jurisdictions,​​ contracts made between partners are considered to be void under common law.

   ·Legislation in NSW, VIC, WA and QLD permits contracts between partners. In the context of an employer nomination, partnerships in these states may be able to nominate a partner. 

   Partnerships could involve simple arrangements between individuals or more complex arrangements such as those involving different types of entities including trusts.

   For the Direct Entry stream, regulation 5.19(4)(a)(ii) requires the nomination to be in respect of the need for a paid employee. Given that a partner may have an ownership interest in the partnership, it may be difficult for a partnership wishing to nominate a partner to demonstrate an employer/employee relationship. In such circumstances, the onus would be on the nominator to establish that an employer - employee relationship exists - refer to Evidence of employer/employee relationship.

   Company

   A company is a legal entity separate from its owners (shareholders) and officers (directors). A company is therefore able to nominate a director or shareholder for an employer sponsored visa.

   …

5. The Tribunal also observes, in relation to a similar issue regarding the now abolished Subclass 457 visa program and associated nomination program, PAM3, in relation to whether the position associated with a nominated occupation in those circumstances is genuine, notably gave examples of the factors that might indicate that the purpose of the nomination application and associated visa application is facilitating the entry or stay of the nominee and/or a family member to Australia. Examples of factors that might indicate that facilitating the entry or stay of the nominee is the primary objective are given as follows:

   ·The nominee is a relative or personal associate of an officer of the sponsoring business. Officers should check departmental records for details of the sponsorship application and ascertain whether there is a direct or indirect relationship between the nominee and any owner/officer of the sponsoring business.

   ·The nominee is a director or owner of the sponsoring business. If the business is a company and an ASIC historical extract has not been provided the business should be requested to provide one if necessary to ascertain whether the nominee is an owner or director or shareholder.

   ·The nominee is currently in Australia and already working for the sponsor and/or the nominee’s immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa.

   ·The business has been in existence for a very short period of time (for example, the business was created in the last 3-6 months and appears to have just been “created” for the purpose of migration).

   ·The proposed salary is significantly lower or significantly higher than industry standards.

   ·The business has a relatively small turnover that could indicate that at the nominated salary provided, it would be difficult to support the number of proposed employees at the business.

   ·The business does not employ any or employs very few Australian employees.

   ·There is evidence that the business may have received, or will receive, payment from the nominee for lodging the nomination.

6. The applicant in this matter is a company and there a legal entity separate from its owners and officers such that it is able to nominate the nominee who is a director for this employer sponsored visa. However, given the nominee in this matter is both an employee of the applicant and a co-director of the company (together with her husband, Mr Levon Movses Yaghdjian, and Dr Richard Sarafian) and Mr Yadhdjian is also a secondary applicant on the nominee’s visa application associated with the nomination application, the Tribunal considers it appropriate that consideration be given to these types of factors in assessing whether there is a genuine need to employ a paid employee in the position as opposed to the facilitation of entry or stay of the nominee and/or her husband in Australia.

7. A number of statements from the applicant, and submissions on its behalf, address the applicant’s need to employ an employee in the nominated position, with reference to associated documentary evidence. In particular, reference is made to Dr Sarafian having other business interests, such that an administration manager was required for the growth and development of the applicant business, and, further, to the need for a multilingual manager to deal with both Australian and Brazilian workers, given the integral nature of the Brazilian company’s operations to the applicant.

8. There are a number of factors which support the assertion that the position associated with the nominated occupation is genuine, including:

   (a)  The position is a skilled position with specific tasks outlined in ANZSCO at a skill level of one;

   (b)  The nominated position clearly fits within the scope of the applicant’s business activities;

   (c)  There has been a clear increase in business activity in line with predictions and the business plan, and a related increase in employees, including four Australian citizens/ permanent residents.

9. Overall, the Tribunal considers that despite the nominated position encompassing aspects of self-sponsorship, in that a successful nomination application is one of the criteria for grant of a visa to the nominee, and her husband, who are both also directors of the applicant company, it also has features that point to it being a genuine position within the business. The Tribunal observes that Departmental policy recognises that ‘self-sponsorship’ is not prevented but there needs to be another reason for the position/need to employ an employee.

10. Overall, having regard to the evidence, including the matters canvassed at paragraphs 12(a) to (f) and 26(a) to (j) of these Reasons, 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.

11. 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))

12. The evidence before the Tribunal is that the position was advertised on for 30 days from November 2015 with four candidates short-listed[10] but determined not to be appropriate candidates, such that the position was then offered to the nominee.

    [10] Refer to short-listed candidates evaluation at page 24 of Department file

13. Based on the documentary evidence provided by the applicant in relation to its recruitment exercise that led to the hiring of the nominee, and related submissions, the Tribunal accepts 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 Corporate Services Manager (ANZSCO code 132111) ‘plans, organises, directs, controls and coordinates the overall administration of an organisation.’

16. The tasks of the Unit Group 1321 are shown within ANZSCO as including:

    ·providing high level administrative, strategic planning and operational support, research and advice to senior management on administrative matters such as staff management, financial planning, facility management and information services

    ·developing and managing the organisation's administrative, financial, physical and staff resources

    ·developing and implementing administrative, financial and operational procedural statements and guidelines for use by staff in the organisation

    ·analysing complex resource management issues and initiatives that affect the organisation, and preparing associated reports, correspondence and submissions

    ·providing information and support for the preparation of financial reports and budgets

    ·leading, managing and developing administrative staff to ensure smooth business operations and the provision of accurate and timely information

    ·representing the organisation in negotiations, and at conventions, seminars, public hearings and forums, and promoting existing and new programs and policies

17. The job description for the position as per Schedule 1 of the employment contract refers to the following duties required to be performed in the position:

    ·Provision of high level administrative, strategic planning and operational support;

    ·Development, management and implementation of administrative, financial, physical and staff resources of the business;

    ·Establishment and direction of operational and administrative procedures and resources;

    ·Monitoring of work progress and performance of staff and adjust processes and resources to ensure optimal performance and productivity;

    ·Analyse any management and initiatives that affect the business and industry and prepare reports to business directors;

    ·Control budget/ financial planning and reporting to business directors;

    ·Management and leading of staff to ensure smooth business operations;

    ·Represent the business in negotiations when required and be responsible for negotiating contracts within given parameters;

    ·Translation of company documents as required;

    ·Overseas travel when required to represent the business;

    ·Have experience in the construction industry and in particular with architectural procedural processes within this field.

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 Corporate Services Manager (ANZSCO code 132111), an occupation specified by the Minister in an instrument in writing for this sub-subparagraph, in Schedule 1 of IMMI 17/058[11], which is, as required, an occupation listed in ANZSCO with a skill level of one, two or three, being a skill level of one for this occupation.

    [11] 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 and Industry Queensland (an approved Regional Certifying Body specified in the relevant instrument at that time, IMMI 13/049) certified on 16 February 2016 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.

    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).