Milton Park Management Pty Ltd (Migration)

Milton Park Management Pty Ltd (Migration) [2018] AATA 4294 (26 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Milton Park Management Pty Ltd
CASE NUMBER:  1722593
DIBP REFERENCE(S):  BCC2016/2207383
MEMBER:Mr S Norman
DATE:26 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 26 September 2018 at 10:40am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – sales and marketing manager – positive assessment of RCB – no verifiable financial documents – organisation chart – changing employee numbers – investment by applicant – applicant’s previous investment experience – portion of wages paid out as applicant’s salary– recent performance of business – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 8 September 2017 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).
The applicant applied for approval on 29 June 2016. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations.
The applicant (represented by the General Manager – Mr Guang Xu FAN), appeared before the Tribunal on 22 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
On 29 June 2016, Milton Park Management P/L (the ‘applicant’ or ‘nominator’ – ABN: 99163028073[1]), lodged an online application under the Regional Sponsored Migration Scheme. The nomination type was listed as “Direct Entry” and the nominee’s name was Mr Jianjun YU. The position nominated was “Sales and Marketing Manager” (ANZSCO: 131112). The head office of the nominator’s business is in Bowral, NSW 2576. The nominated position was said to be full-time and available for at least two years with a base salary of $181,000 per annum. The ANZSCO description follows:
[1] Tribunal – folio 42.
UNIT GROUP 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS
ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
odirecting the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty
odirecting the development and implementation of strategies to promote an organisation's goods and services to as many people as possible
odirecting the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'
odirecting the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public
Occupations:
131112 Sales and Marketing Manager
131113 Advertising Manager
131114 Public Relations Manager

131112 SALES AND MARKETING MANAGER
Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
Specialisations:
Business Development Manager
Market Research Manager
The nominator claimed the business (after he had purchased same) commenced trading in Australia on 24 April 2014, and it employed a total of 60 Australian employees (including Australian citizens and permanent residents – and no foreign employees). The nominator lodged various documents with the Department. These included but were not limited to:
·Australian Business Register/ASIC document – ASIC extract[2]
·Australian Business Register/ASIC document – ABN Lookup
·Employment contract dated 15 June 2016[3]
·Lease agreement/Rent statement – lease agreement Yufan and Milton Park
·Advertisement for the position - advertised in ‘May’ at Jobactive[4]
·Genuine position and no equivalent worker[5]
[2] Tribunal – from folio 46.
[3] Tribunal – from folio 113 (reverse side).
[4] Tribunal – folio 52, 67; also see from folio 116.
[5] Tribunal – from folio 70.
By undated and unsigned submission from Milton Park,[6] it was claimed the nominator’s business is a ‘classic and luxurious hotel’; that they are very busy; that the nominated position will play a very important role to expand the business; that “under the influence of Chinese popstars”, more and more Chinese couples are marrying abroad; that the Milton Park wedding service is being sold to Chinese consumers; and that successful expansion to the Chinese market will increase the occupancy rate of the hotel during the low season in Australia.
[6] Tribunal – from folio 70.
It was also claimed the position of Marketing Manager had been vacant since 1 May 2016; that they urgently need to recruit a new Sales and Marketing Manager; that they had sought a full-time Sales and Marketing Manager with a salary of $91,000 – though it was claimed the “real market rate for this position varies from $80,000-$200,000 depending on the level of experience and duties the employee is expected to perform”.[7] Further information lodged with the Department included:
·Regional Certifying Body Certification – RCB (form 1404)
·Duty statement – detailed position description
·Business profile – hotel facilities
·Work orders – Milton Park wedding compendium
·Business organisation chart – Milton Park Organisation Chart (not dated)[8]
·Work orders – Milton Park wedding promotion brief
·Training plan – training benchmark evidence
·Work orders – 1466 Milton Park wedding promo video.
[7] Tribunal – folio 70 (reverse side).
[8] Tribunal – from folio 51 (Chinese script)
By letter of 29 June 2016, the Department invited the nominator to provide any further evidence and submissions in support of the nomination approval application. The Department letter also referred the applicant to the ImmiAccount, where a ‘summary of relevant documents was provided as a guide’.
After then noting the positive assessment of the RCB (issued 8 December 2016), the delegate focused on the financial capacity of the nominator to pay the full-time salary for the nominated position for at least two years at the base annual salary of $181,000. The delegate noted there was no independently verifiable evidence such as Business Activity statements or Financial Statements or Profit and Loss Statements or Balance Sheets that had been lodged with the Australian Taxation Office, which may have demonstrated the financial capacity of the nominator’s business. The delegate also noted the total wage expenditure claimed on the financial documents ($1,825,273), did not appear to indicate that wages were paid for all 60 employees. Further, the delegate noted the Organisation Chart listed 52 employees (though the number of employees differs between different seasons) plus a director. Given the inconsistent information, the delegate gave “little weight” to the organisation chart. Further, in the absence of verifiable financial documents, the nominating business had not satisfied the delegate of its financial capacity to pay the nominated salary for a period of two years. On that basis, the delegate found that the applicant did not meet r.5.19(4)(d); and therefore, did not meet r. 5.19(4). Next, the delegate noted the applicant did not submit evidence with respect to r. 5.19(3); and this alternate sub-regulation had not been met.
By s.359(2) letter of 13 February 2018, the Tribunal wrote to the applicant and requested any further evidence and submissions that may satisfy it the relevant criteria in r.5.19(2) and (4) were met. A request for an extension of time within which to respond was granted. The Tribunal has not expressly referred to all evidence and submissions that were lodged. However, I have taken into account all evidence and submissions prior to drafting this decision.
By migration agent letter dated 12 March 2018,[9] it was claimed there were two companies (Yufan Australia P/L – hereinafter ‘Yufan’) and (Milton Park Management P/L – hereinafter ‘Milton Park’ or the ‘Milton Park business’). These companies were formed in March 2003 (at hearing, the applicant explained that he and the nominee/visa applicant both held a 50% share of each of the two companies). The Milton Park land (the ‘estate’) was bought through Yufan (a Contract for the Sale of Land indicated the cost as AUD$11,700,000[10] – at hearing, the applicant said the total cost was more like AUD$13,000,000 – and some of this money had been borrowed). Further, the land was then leased back to Milton Park (for the hotel business); the business was seeking to “break into the inbound Chinese tourist market”; the business partner (the visa applicant) was said to have the business networks and skills and knowledge to assist the nominator’s business.
[9] Tribunal – from folio 50 (reverse side).
[10] Tribunal – folio 193.
Also lodged were statutory declarations by Mr Guang Xu FAN (the then Director and now the A/g General Manager[11] of Milton Park Country House Hotel and Spa[12]); and Mr Jianjun Yu (the nominee/visa applicant and business partner[13]) on the sources of fund/s. Mr Guang Xu FAN’s statutory declaration dated 26 December 2017,[14] said he and the nominee were directors and each owned 50% shares of Milton Park Management P/L trading as Milton Park Country House Hotel and Spa (Milton Park). It was also claimed each had provided a personal loan of $5,768,398 to ‘Yufan’. Mr Yu’s statutory declaration dated 5 January 2018,[15] materially repeated that which was stated by Mr Guang Xu FAN. Also lodged with the Tribunal:
[11] Tribunal – folio 198.
[12] Tribunal – from folio 50 (reverse side).
[13] Tribunal – folio 49.
[14] Tribunal – folio 97 (reverse side).
[15] Tribunal – folio 114 (reverse side).
·New commercial lease for the Milton Park Management P/L[16]
[16] Tribunal – folio 98 (reverse side).
·Financial report for 2016 and 2017
·Business Activity Statements – 2015 to August 2017[17]
·Further BAS statements were lodged and have been taken into account.
·Bank statements for January and February 2018[18]
·Commitment to training Australian staff – training for 2016-2017[19]
·Certification form on 245AR(1) ‘duly signed’[20]
·Hotel facilities information
·Marketing promotion for the hotel
·Current organisation chart and the organisation chart as at 30 June 2017[21]; and as at 4 March 2018[22]
·Wage payments by ‘departments’ for 2016 and 2017[23]
[17] Tribunal – from folio 124.
[18] Tribunal – from folio 141 (reverse side).
[19] Tribunal – from folio 134.
[20] Tribunal – folio 113.
[21] Tribunal – folio 98.
[22] Tribunal – folio 108 (reverse side).
[23] Tribunal – from folio 68; and from folio 76; and from folio 107; and from folio 127 (.reverse side).
The agent then said his instructions were that the Sales and Marketing Manager position was essential to the operation of the business. It was also said that due to the nature of the hospitality industry, the number of employees changed during peak tourist season; but that there were 21 full-time positions, 4 part-time positions, and 38 casual positions. The agent also said they had provided a wages payment by department reports for 2016 and 2017 with different numbers of employees showing. It was also claimed the visa applicant (the nominee) did not have any restrictions on his Bridging visa B; that he was asked to commence (at Milton Park) on 1 January 2018; and that he had already travelled around, and or to, both China and the United States to “secure business referral partners and investigate marketing approaches”. Regarding information about the roles and duties of the nominated position, the following was lodged:
·Detailed description of the roles and duties, and the ANZSCO description of Sales and Marketing Manager[24]
·The employment contract for the nominee which is for three years with no specified exclusion for extending the period of employment
·It was claimed there were no industrial awards to cover the position of Sales and Marketing however, Mr Guang Xu FAN provided recent job advertisements to demonstrate some current market rates for the position. It was claimed it was not believed the terms and conditions to be more or less favourable to those provided to an Australian citizen or permanent resident
·The nominee’s resume, evidence of his qualifications and his employment experience at a ‘senior management’ level in China; a Business License[25]; recent Company Search report; Organisation charts; and news reports concerning the visa applicant/nominee and the Haiguanshan Hotel[26] (being the hotel in Hubei province, which the visa applicant operated and held a 50% stake).
[24] Tribunal – from folio 74 (reverse side); and from folio 115 (reverse side).
[25] Tribunal – folio 53.
[26] Tribunal – folio 53 (reverse side); from folio 58.
Regarding the amount being paid, it was claimed that Mr Guang Xu FAN had said that given the nominee’s experience and his business networks in China,[27] it was reasonable to pay him the annual salary of $181,000. It was claimed the nominator’s business needed someone with good marketing skills, with good Chinese language skills and demonstrated business networking skills. It was claimed the nominee had these skills. Further documents lodged with the Tribunal included:
·Genuine position report
·The recruitment exercise in May 2016 and its results with eight unsuitable candidates[28]
·The Regional Development Australia Southern Inland, the Regional Certifying Body (RCB) - (attached form 1404) had endorsed the nominated position and said:
·     there is a genuine need for a paid employee in the nominated position within the business activities of the employer
·     the terms and conditions of employment will be no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident performing the same work in the same location
·     the nominated position cannot be reasonably filled from the local labour market.
[27] Tribunal – see from folio 64.
[28] Tribunal – including at folios 50, 55, 56, 59 (reverse side).
The Profit and Loss statement for the year ended 30 June 2016, showed net assets as $612,025[29]; wages of $527,747[30]; and profit from ordinary activities before income tax $672,95[31].
[29] Tribunal – folio 79 (reverse side).
[30] Tribunal – folio 80.
[31] Tribunal – folio 80 (reverse side).
Further evidence was lodged. These included (but are not limited to) a PAYG statement dated 1 January 2018[32]; evidence of superannuation payment/s[33]; evidence of business activity[34]; evidence of further Activity Statements[35] (including one for the period April 2018-June 2018 – indicating total wages of $175,310[36]). Also lodged was:
·A document titled Notes to the Financial Statements for year ended 30 June 2018.[37] That indicated ‘retained earnings at the end of the financial year’ as $1,049,499. [38]
·Trading Profit and Loss Statement for the year ended 30 June 2018.[39] That indicated ‘profit after income tax’ of $230,618.
[32] Tribunal – folio 154.
[33] Tribunal – from folio 158 (reverse side).
[34] Tribunal – from folio 161; and from folio 182.
[35] Tribunal – from folio 169.
[36] Tribunal – folio 162.
[37] Tribunal – from folio 186.
[38] Tribunal – folio 184.
[39] Tribunal – from folio 188 (reverse side).
Also lodged was a ‘Letter of Recommendation’.[40] Amongst other things, that said the visa applicant invested several millions of dollars to buy land and a share of the Milton Park Hotel; and after then setting out the services provided, the author noted that because of the remote location of the business (Bowral) there was a “big difference between the peak and off seasons”. The author then said the business would benefit by opening up to the “international market, especially the huge China consumer market”. It was said the visa applicant had over 27 years of experience in “catering, hotel, entertainment industries”. However, because the Department refused the visa applicant, they had not been able to “implement [their] plan”.
[40] Tribunal – from folio 190 (translated version).
At the hearing, the applicant told the Tribunal the visa applicant had commenced working with Milton Park in January 2018. Between May 2016 and January 2018, the position had been left vacant (though a friend of one of the other managers had been engaged to plan weddings and events). The applicant also said the person who had left in May 2016, had not been able to generate sufficient income from the local market.
The applicant then explained that hotels in Australia are commonly largely vacant between Mondays and Thursdays each week. Weddings in Australia are often catered for (including by Milton Park) on weekends (apparently one of the largest revenue earners for the nominator’s business), and conferences are more often booked towards the end of each financial year. The applicant therefore wished to expand the business into the Chinese tourist market and he believed the visa applicant (already a 50% owner and operator of a hotel in Hubei province), was well placed to do this.
However, the evidence (including that lodged at hearing), indicated the visa applicant had invested many millions of dollars into the nominator’s business, that in more recent times (20 August 2018), both the applicant and the visa applicant had each invested a further $100,000 into the business. The applicant said this was for expanding the business, but the Tribunal was concerned this might also be an indication of current financial difficulties. Furthermore, the BAS statement for the Milton Park business for April 2018-June 2018 – identified total wages of $175,310.[41] Therefore, and given the visa applicant commenced working in the business in January 2018, it appeared the proposed salary ($181,000 per annum) was between one quarter and one fifth of the total wages/salary that was being paid by Milton Park. This was in spite of their being some two positions at the visa applicant’s level (in the Organisation Chart[42]), with only the applicant (as A/g General Manager), above this. At hearing, it was also explained there were some 20 permanent and full time staff, and around 40 part time or casual staff.
[41] Tribunal – folio 162.
[42] Tribunal – folio 197.

Post hearing migration agent submissions dated 28 August 2018,[43] said the ‘Total Gross Salary Payments’ for the period April-June 2018 was $611,100.26; and that the visa applicant was paid $48,602.40, which was said to be only 7.95% of ‘Total Gross Salary Payments’ (documentary evidence was also lodged). However, the Trading, Profit and Loss Statement for the Year ended 30 June 2018, stated wages were $648,748.00;[44] and no other item in that Trading, Profit and Loss Statement for the Year ended 30 June 2018, appeared to identify other (ie) wages or salary payments. That being said, the Trading, Profit and Loss Statement for the Year ended 30 June 2018, did refer to ‘Direct Wages’ of $1,920,673.[45] However, the Tribunal understands that in accounting, that refers to the unit cost of producing goods in a business. Be that as it may, the Tribunal has preferred its prior finding about this issue, contrary to the more recent post-hearing submissions. However, and even if the Tribunal is wrong, for the following reasons, the Tribunal remains satisfied the nominating business does not have the capacity to pay the proposed salary for at least two years.
[43] Tribunal – from folio 207.
[44] Tribunal – folio 188 (reverse side).
[45] Tribunal – folio 188 (reverse side).
Given the substantial monies that have been invested into the nominating business (including recently) by both the applicant and the visa applicant, and the fact the visa applicant’s salary is a substantial portion of the total wages/salary being paid by Milton Park in the financial year ending 30 June 2018, this is a one reason that caused the Tribunal to doubt the business was viable, and more importantly, whether it would have the capacity to pay the visa applicant the proposed salary for at least a two year period.
Next, and also importantly, at hearing the applicant conceded the nominating business had (words to the effect) ‘not performed well’ in the last four years; that it was hoped the visa applicant would increase the profitability of the Milton Park business; that it was proposed to expand the business; and that the applicant hoped that (eventually) the visa applicant (who operated a hotel in Hubei province) would increasingly engage in running and developing the Milton Park business (and therefore, replace the applicant as General Manager). Then the Sales and Marketing Manager role could be taken on by another person. The Tribunal understands the applicant is therefore hoping the visa applicant will reverse the fortunes of the Milton Park business – by selling occupancy to the claimed increasingly affluent Chinese market.
The Tribunal notes the applicant and the visa applicant appear to have access to substantial monies. A substantial amount of money was recently invested into the nominator’s business by both the applicant and the visa applicant. However, the personal wealth of an applicant does not, without more, conclusively establish that a nominating business would have the capacity to pay a proposed salary for at least a two year period. The Tribunal does accept the visa applicant has had experience in (ie) the hotel business in China. Though based on all the evidence before me, I am not satisfied that such experience would necessarily transfer to the Australian hotel market. Therefore, and based on the financial evidence and concessions before the Tribunal (including that the nominating business had not performed well for the last four years), the Tribunal is not satisfied the nominating business has the capacity to pay the proposed salary for (at least) a two year period, and without excluding the possibility of an extension. After having considered all the evidence, the Tribunal is not satisfied the Milton Park business will have the capacity to pay the visa applicant the proposed salary for two years.
Accordingly, the requirement in r.5.19(4)(d) is not met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
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 (in this case) as requiring that:
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
At hearing, the Tribunal advised the applicant it would consider inter alia whether there was a genuine need for the position. At hearing, the applicant said he owned/operated businesses in China and Australia. He had previously owned ‘Jamberoo Resort’ in Australia, but that had been sold in late 2017. While the Milton Park business had been operating for around 100 years, he had only purchased this business in 2014.
As noted above, there had been substantial monies invested into the Milton Park business by the visa applicant (more than AUD$6 million); that the Sales and Marketing Manager position in the Milton Park business had been (in effect) left vacant between May 2016 and January 2018; and that the applicant apparently hoped the visa applicant would (eventually) leave the Sales and Marketing Manager position and take up a more senior post with the Milton Park business. The applicant wanted the visa applicant (eventually) to take over the running of the Milton Park business. In ANZSCO, that would be more aligned to the position of ‘UNIT GROUP 1112 GENERAL MANAGERS’. At hearing, and as stated above, the applicant also explained the Milton Park business had not been ‘performing well’ for the last four years. Given this evidence, this is one reason that caused the Tribunal to doubt there was a genuine need for the nominated position of Sales and Marketing Manager.
Next, at hearing the applicant said he had worked with the visa applicant in China (for 20-30 years) and he first had attempted to persuade the visa applicant to invest in a business in Australia. However, he also said the visa applicant had a team of persons at his hotel in Hubei province, who were capable of promoting that business within the China market. When asked why the same team (or an independent organisation that provided such services) could not perform this work for the Milton Park business in China, it was explained these persons were engaged by the hotel in Hubei province. However, based on the Tribunal’s experience, the promotion of hotel services in China is something that persons in China can be engaged to assist with. This is another reason that caused the Tribunal to doubt there was a genuine need for the nominated position of Sales and Marketing Manager.
Next, when discussing recruitment (with particular focus on whether the position could not be filled by an Australian citizen of permanent resident who is living in the same local area), the Tribunal notes the Regional Development Australia Southern Inland, the Regional Certifying Body (RCB) - (attached form 1404) had endorsed the nominated position and said:
·there is a genuine need for a paid employee in the nominated position within the business activities of the employer
·the terms and conditions of employment will be no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident performing the same work in the same location
·the nominated position cannot be reasonably filled from the local labour market.
The nominator’s business is in Bowral (just over one hours drive from Sydney airport – and under one hours drive from Wollongong). When then asked how the position was advertised, the applicant believed that media advertisements had been utilised. He had also spoken to his operations manager on ‘several occasions’, he had asked friends (including in Hong Kong), and he had even approached his neighbour. His friend in Hong Kong had recommended someone as had the operations manager in Australia. However, as the applicant had known the visa applicant for some 20-30 years and trusted him, the applicant offered the position to the visa applicant. At hearing and when asked, the applicant did not say he had approached a recruitment agency or head hunter agency. The applicant did say that other applicants for the Sales and Marketing Manager position were not suitable. However, and as stated at hearing, the Tribunal may consider whether the visa applicant’s suitability for the position was principally based on his capacity to invest substantial monies into the Milton Park business (and the Tribunal understands this does not necessarily preclude a person from being considered the best for a position). The applicant said he believed the visa applicant was well placed to expand the Milton Park business into the Chinese market.
That being said, as the Tribunal was satisfied the applicant had not met r.5.19(4)(d), I have not considered this further.
For the above reasons the Tribunal is not satisfied the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Mr S Norman
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)    directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)    all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2018] AATA 4294

26 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness