Merimbula RSL Club Limited (Migration)

[2023] AATA 1878

Merimbula RSL Club Limited (Migration) [2023] AATA 1878 (15 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Merimbula RSL Club Limited

REPRESENTATIVE:  Mr Claudio Garzini (MARN: 1803676)

CASE NUMBER:  1925513

HOME AFFAIRS REFERENCE(S):          BCC2017/4948313

MEMBER:Terrence Baxter

DATE:15 June 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 15 June 2023 at 9:38am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Cook – position could be filled by an Australian permanent resident – recruitment agencies reports – evidence of job advertisements – updated financial information – tasks of the position – actively and lawfully operating a business in Australia – financial capacity to employ the nominee for at least two years – terms and conditions of employment no less favourable – genuine need for the employment – relevant qualifications – decision under review set aside           

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Merimbula RSL Club Limited (the Club), applied for approval on 25 December 2017. The applicant nominated Mr Pedro Henrique Barbosa Lins (the nominee) in the position of Cook. The applicant is a licensed club located in Main Street, Merimbula, New South Wales and has employed the nominee as a Cook since February 2018.

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

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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate found that the applicant had not demonstrated that the position could not be filled by an Australian citizen or an Australian permanent resident living in the same local area as the position to be filled.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 11 September 2019.

7. Mr Derek Philistin, the Executive Chef and Catering Manager of the applicant, appeared before the Tribunal by video conference on 17 May 2023 to give evidence and present arguments. The hearing was a joint hearing with two other applications for review by the applicant. The applicant consented to the joint hearing.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicant was represented in relation to the review by its registered migration agent Ms Ana Julia Figueredo Carusi of Seven Migration until 22 October 2022 and by its registered migration agent Mr Claudio Garzini of Seven Migration from that date. Mr Garzini attended the Tribunal hearing by video conference.

10. 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

11. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented prior to the hearing

12. The applicant provided to the Department of Home Affairs (the Department) the following documents:

    a.Financial statements for the 2017 financial year with a classification of income and expenses and tax return.

    b.An extract from the applicant’s ATO tax portal and a copy of the applicant’s activity statement 001.

    c.ABN Lookup reports in respect of the applicant’s ABN.

    d.Evidence of advertisements with Fairfax Media.

    e.Reports from the applicant’s auditor dated 11 August 2017 and 1 August 2018.

    f.An employment contract of the nominee dated 25 January 2018 together with a position description.

    g.Organisational charts.

    h.Advertisements for the position.

    i.Various business activity statements.

    j.Various trading statements.

    k.Form 1404 advices and assessments from the regional certifying body (RCB), Regional Development Australia Far South Coast dated 4 July 2018 and 23 April 2019.

    l.Notices of changes in circumstances lodged on 12 December 2018 and 11 February 2019.

    m.A financial report for the 2018 financial year.

    n.A submission from a former representative to the RCB dated 4 December 2018.

    o.A submission from a former representative dated 6 May 2019.

    p.An ASIC extract in respect of the applicant.

    q.Submissions from the applicant dated 6 December 2017, 27 March 2018, 21 November 2018, 3 December 2018 and 12 December 2018 together with an undated submission.

    r.Reports from recruitment agencies Campbell Page, Batemans Bay and Konekt, Bega.

    s.Resumes of job applicants.

    t.Screenshots from the applicant’s website.

    u.An extract from the Australian and New Zealand Standard Classification of Occupations (the ANZSCO) for Unit Group 3514 Cooks.

    v.A Contract of Employment and payslip of another employee performing equivalent work (with details of the identity of the employee redacted).

    w.An extract from the Registered and Licensed Clubs Award 2010 and a pay guide under that award issued by the Fair Work Ombudsman.

13. The applicant produced to the Tribunal the following documents in addition to documents previously provided to the Department:

    a.A copy of the delegate’s decision.

    b.Submissions from the representative dated 6 December 2019 and 27 November 2022.

    c.A submission from the applicant’s accountants dated 21 September 2022.

    d.An updated ASIC extract in respect of the applicant.

    e.Business activity statements for the period from October 2020 to September 2022.

    f.Tax returns for the 2021 and 2022 financial years.

    g.An organisational chart and job description.

    h.Various trading statements of the applicant.

    i.An employment contract dated 30 October 2022.

    j.A payslip of another employee performing equivalent work with details of the name of the employee redacted.

    k.Evidence of tasks performed by the nominee in the position.

    l.A current pay guide issued by the Fair Work Ombudsman under the Restaurant Industry Award.

    m.A Form 1404 advice from the RCB dated 7 November 2019.

14. In a related application, the applicant produced to the Tribunal audited financial reports for the 2021 and 2022 financial years. At the hearing, Mr Philistin, on behalf of the applicant, consented to the Tribunal relying on those financial reports in its consideration of this application.

    Evidence presented prior to and at the hearing regarding the applicant’s operations

15. Merimbula is a popular tourist destination in the heart of the region known as the Sapphire Coast of New South Wales. The Club operates seven days per week and provides a range of hospitality services including a restaurant and coffee shop as well as hosting functions and conferences. The coffee shop operates 12 hours per day and the restaurant is open for approximately eight hours per day.

16. The applicant’s dining facilities provide both Western-style meals and Chinese and Thai cuisine. Mr Philistin stated that, although the applicant presently employs nine Cooks and Chefs, three full-time Chefs are still required to fill rosters. He said that he been employed by the applicant for 19 years and that problems with recruitment of staff are worse now than at any other time during his employment. He said that other restaurants in the locality had been forced to reduce their trading hours because of a shortage of skilled staff and that the applicant would also be forced to reduce the menu that it offers to patrons if this nomination and the two related nominations for similar positions were not approved.

    Evidence presented after the hearing

17. After the hearing, the applicant produced to the Tribunal the following documents:

    a.A submission from the representative dated 29 May 2023.

    b.An updated organisational chart.

    c.Evidence of the nominee’s qualifications in Commercial Cookery.

    d.An amended employment contract dated 19 May 2023 together with a position description.

    The application is compliant: reg 5.19(4)(a)

18. 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). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

19. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.

20. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.

    [1] Dictionary.com (accessed June 2023).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

21. The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Cook. On page 6 of the application, the nominee is identified as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ an identified person as a paid employee in the position of Cook under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).

22. As regs 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.

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

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

24. The applicant produced evidence from ASIC that it is registered together with financial reports and tax returns for the 2021 and 2022 financial years. The applicant has produced evidence that its ABN is active and the business activity statements to the month of September 2022 confirm that the applicant is registered for GST.

25. The applicant’s financial statements reveal that it received revenue in the 2021 and 2022 financial years of $12,025,317 and $11,498,951 respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely a licensed club.

26. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour hire: reg 5.19(4)(c)

27. 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. 

28. Mr Philistin gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.

29. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

    Term of employment of the visa holder: reg 5.19(4)(d)

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

31. The employment contract dated 19 May 2023 provides that the position is full-time (38 hours per week). The position is Cook. The contract provides that the nominee’s employment is for a minimum of two years. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.

32. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). Mr Philistin stated at the hearing that the salary to be paid to the nominee is to be $63,500 per annum plus superannuation.

33. The applicant’s business is profitable. It achieved net profits of $1,777,165 and $1,410,644 in the 2021 and 2022 financial years respectively. The applicant had net assets exceeding $16 million on 30 June 2022. The applicant has employed the nominee on a full-time basis since February 2018.

34. The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Cook in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.

35. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

36. 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.

37. The employment contract provides that the nominee has been employed in the position of Cook (Level 4). The pay guide under the Restaurant Industry Award provides that the current weekly pay rate for this classification of employee is $940.90, equivalent to $48,926.80 per annum without reference to overtime work or penalty rates. Mr Philistin stated that the nominee is not required to work overtime and that the salary of $63,500 per annum has been calculated to take into account penalty rates. He said that this salary exceeded the salary payable to the nominee under the Award, based on the hours worked by the nominee.

38. The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by Regional Development Australia Far South Coast dated 7 November 2019 that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).

39. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

40. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

41. 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 meaning given in regs 1.13A and 1.13B.

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

43. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

44. 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.

1. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

2. Accordingly, the requirements of reg 5.19(4)(g) are met.

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

3. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that an RCB has advised the Minister about certain matters relating to the position.

4. The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 2548 (Merimbula, New South Wales). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 52-54 Main Street, Merimbula, New South Wales 2548. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.

   Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia

5. As recorded in the preceding paragraph, the Tribunal finds that the position is located at

   
   

   52-54 Main Street, Merimbula, New South Wales 2548. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.

   Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control

6. Mr Philistin gave general evidence regarding staff shortages in the hospitality trade in the Merimbula district and efforts that local employers had made in conjunction with local schools and TAFEs and through local radio stations to seek qualified staff.

7. Specifically relating to the services offered by the applicant, he said that the Club provided three styles of cuisine, namely, Chinese, Thai and Western. He said that the nominee was employed in the Specials section. The current organisational chart discloses that, apart from Mr Philistin, the applicant employs three Chefs, eight Cooks and two apprentices.

8. Mr Philistin was asked, having regard to the number of Chefs and Cooks presently employed, why there was a need to employ the nominee as a Cook. He replied that, even with the number of qualified staff presently employed, there was still a shortage of three full-time Chefs. The Tribunal has noted earlier in these Reasons that Mr Philistin stated that the applicant would be forced to reduce the menu that it offers to patrons if this nomination and the two related nominations for similar positions were not approved.

9. The Tribunal notes that the nominee has been employed in the position of Cook since February 2018. The Tribunal has also had regard to the certificate of the RCB referred to in paragraph 38 above.

10. The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Cook at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.

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

11. Based on the information provided to the Department, the delegate was not satisfied that this requirement had been met. The information regarding advertising for the position that was provided to the Department was inconsistent and the RCB had, at the time of the delegate’s decision, provided two advices that it was not satisfied that the requirement had been met.

12. Since the original advertising campaign was conducted in 2018, the applicant has advertised regularly on the platform Indeed, on its Facebook page and through recruitment agencies. The applicant provided a recruitment report with details of eight applications to fill the position, together with reasons why those applicants were rejected for reasons including being based overseas, lack of experience and lack of qualifications. Mr Philistin stated that potential job applicants also occasionally enquired regarding employment at the applicant’s Club. He stated that, through all of these avenues, there had been no qualified local applicants for the position. On one or two occasions, employment had been offered to job applicants, only for them to decline those offers.

13. Having issued two advices that this requirement was not met, the RCB issued the advice referred to in paragraph 38 above to the effect that it was satisfied that the requirement had been met.

14. Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.

    Regulations 5.19(4)(h)(ii)(D) and (DA) – the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation

15. The occupation proposed by the applicant was Cook which has the six-digit ANZSCO code 351411, and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in the ANZSCO for that occupation are as follows:

    ·examining foodstuffs to ensure quality

    ·regulating temperatures of ovens, grills and other cooking equipment

    ·preparing and cooking food

    ·seasoning food during cooking

    ·portioning food, placing it on plates, and adding gravies, sauces and garnishes

    ·storing food in temperature-controlled facilities

    ·preparing food to meet special dietary requirements

    ·may plan menus and estimate food requirements

    ·may train other kitchen staff and apprentices.

16. The nominee’s tasks, according to the position description include the following:

    • Ability to prepare dishes to the highest quality using basic methods of cookery.
    • Maintain quality control of food items to a high standard whilst participating in safe and sustainable work practices. (HACCP)
    • Preparing food to meet special dietary requirements including vegetarian/ vegan dishes and any specialized food items.
    • Assist Executive Chef with ordering of food items, plan and cost recipes and ordering of new
    equipment.
    • Preparing, cooking, and seasoning of food items.
    • Portioning food and garnishes.
    • Receive and store and maintain stock items.
    • Ability to manage and work efficiently and effectively as a Cook.
    • Ability to follow instructions.
    • Report to Executive Chef on daily trading.
    • Understand and able to follow hygiene and safety procedures, safe food handling for food safety including correct cleaning procedures for kitchen premises and equipment.

17. The nominee’s duties according to the position description are consistent with the tasks specified for the occupation in the ANZSCO. Mr Philistin gave evidence at the hearing regarding the tasks presently performed and to be performed by the nominee. He said that the nominee was highly skilled in all methods of cookery and specialised in preparation of food cooked in pans to order. He said that the nominee had experience in restaurants in Sydney prior to commencing employment with the applicant. His tasks included providing feedback to the Chefs regarding menus and ordering of products and training apprentices and kitchen staff.

18. The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Cook specified by the Minister in the relevant instrument. According to the ANZSCO, the occupation is a Skill Level 3 occupation, requiring that the nominee holds an AQF Certificate III including at least two years on-the-job training or an AQF Certificate IV and that at least three years relevant experience may substitute for the formal qualifications. The applicant provided evidence that the nominee holds Certificates III and IV in Commercial Cookery. The Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.

    Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position

19. As set out in paragraph 48 above, the Tribunal is satisfied that the business operated by the applicant is located at 52-54 Main Street, Merimbula, New South Wales 2548, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.

    Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)

20. The certificate referred to in paragraph 38 above was submitted to the Tribunal. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.

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

22. 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

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ an identified person, as  a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       all of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).