Mr Jee Electronics Pty Ltd (Migration)

Mr Jee Electronics Pty Ltd (Migration) [2020] AATA 3142 (20 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jee Electronics Pty Ltd
CASE NUMBER:  1732669
DIBP REFERENCE(S):  BCC2016/3711292
MEMBER:De-Anne Kelly
DATE:20 May 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 20 May 2020 at 3:32pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Retail Manager – position cannot be filled locally – wording of job advertisement – ‘Asian language speaker preferred’ – limiting the field of potential applicants – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139
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 14 December 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 7 November 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)(h)(ii)(D) of the Regulations, because the applicant did not demonstrate that the tasks to be performed by the position correspond to the tasks of an occupation at the skills level of ANZSCO 1,2 or 3, and the delegate believed the position was that of a retail supervisor.
The applicant appeared before the Tribunal on 12 March 2020 to give evidence and present arguments. This was a dual hearing of the employer nomination refusal review and the visa application refusal review. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.
Mr Jee Electronics Pty Ltd, the applicant, is registered under ABN 69 163 767 128.The company sells mobile/computer related accessories and repair services at 9/81 Palmerin Street, Warwick Queensland 4370 under the trading name Funplus. Mr Yongsee (Kevin) Jee is the sole director and sole secretary of the company. The company commenced trading in 2013 and the applicant advises that sales have been increasing over the years. As a result, the director pursued plans to open up branches in other areas across Queensland. At the same time, the director’s wife commenced a massage business in 2013 and opened her own shop in 2015 in Toowoomba. The director and his wife had their first child in 2016 and he found he needed to provide care and support to his family. In order to do this, he relied on a retail manager, Miss Yoo, who was also nominated on an RSMS 187 visa. In mid-2016, Miss Yoo resigned and left the company. The applicant urgently needed to fill the position and the nominee was chosen.
In 2017, in an attempt to expand the business, the director visited Rockhampton to survey whether it was an appropriate place to open a branch but abandoned the idea when he realised it was difficult to recruit employees, unlike his recruitment experiences in Warwick. At the beginning of 2018, the applicant opened a branch in Toowoomba but it did not perform as well as expected. The applicant had difficulty managing two branches that were 84km apart and in March 2019, the Toowoomba business was closed. In September 2019, the director and his wife had their second child and thereafter he had to look after his family and his wife's massage business. The applicant advises that he has cleared the losses and debts from the Toowoomba branch and expects to make a profit between $7,000 and $30,000 at the end of 30 June 2020.
On 7 November 2016, a Regional Sponsored Migration Scheme (RSMS 187) nomination application was lodged by the applicant under the direct entry stream for the position of Retail Manager (ANZSCO 142111) on a salary of $47,010 per annum in favour of Mr Donggil Lee.
Tax returns for the applicant show a loss of $25,556 and a profit of $7,474 respectively for the 2018 and 2019 financial years. It is noted that carrying forward the 2018 loss gives an effective loss of $18,082 for financial year 2019:

Tax Return

2018

2019

Income       444,239      464,898

Expenses

Advertising          5,199             8,572

Wages       145,940      164,425

Superannuation         13,864        15,623

Other expenses       304,792      268,804

Total Expenses       469,795      457,424

Profit/loss         (25,556)          7,474

Documents were submitted with the original employer application, including the following:
·Letter dated 29 January 2020 from the registered migration agent.
·Commercial invoices and packing lists from supplier Mercury Corporation, Korea, addressed to the applicant, dated 12 September 2016 and 27 July 2016.
·List of stock items, such as armband for iPhone, etc.
·Business insurance certificate of currency dated 8 July 2016.
·Letter of engagement dated 1 November 2016 signed by the applicant and nominee, including position description.
·Application to lease shop and lease on premises at Rose City Shoppingworld, dated 13 September 2016.
·Flier advertising Funplus in Warwick.
·ASIC registration for Mr Jee Electronics Pty Ltd with office holder Mr Yong Soo Jee.
·Online application dated 7 November 2016.
·ASIC certificate of registration of a company showing commencement date 14 May 2013.
·Financial statements to 30 June 2015.
·Advertisement for store manager placed on Adzuna, posted on 5 October 2016 by the applicant.
·Advertisement on Gumtree for sales assistant posted 2 November 2016.
·Organisation chart as of November 2016 showing: director; store manager (the nominee); repairer and sales assistant (vacant).
·Detail from Fair Work Ombudsman site showing salary for retail employee level 8.
·Pay scale analysis for retail store manager.
·Selection of online advertisements for store managers.
·Funplus job description for store manager.
·Acknowledgement of nomination application received, dated 7 November 2016, from Department of Immigration and Border Protection.
·Certification form paying for visa sponsorship signed by the applicant.
·Regional certifying advice on Form 1404 dated 8 November 2016.
·Chamber of Commerce and Industry Queensland (CCIQ) assessment statement from regional certifying body dated 7 November 2016.
The following documents were submitted with the review application:
·Notification of refusal of a nomination application dated 14 December 2017 from Department of Immigration and Border Protection, including a notice of decision.
·Letter from the migration agent dated 29 January 2020, in response to correspondence dated 15 January 2020, with attachments as follows:
o   ASIC search as at 28 January 2020.
o   Financial Statement of Mr Jee Electronics Pty Ltd to 30 June 2017.
o   Financial Statement of the company for the year ended 30 June 2018.
o   Company tax return for the year ended 30 June 2018.
o   Financial Statement of the company for the year ended 30 June 2019.
o   Various Business Activity Statements from July 2017 to September 2019.
o   Organisational structure chart of the company as of 2020.
o   Correspondence from Rose City Shopping Centre dated 15 January 2020.
o   Faulty item report, undated.
o   Fund requests dated various.
o   Monthly damaged stock report dated various.
o   Manager’s price adjustment and cost history for Apple products.
o   ‘Fashion on a Plate 2019’ dated 11 March 2019.
o   ‘New sign for refurbished phone sales’ dated 3 June 2019.
o   ‘Starting loan phone service 04/06/2019’ dated 3 June 2019.
o   ‘Loan phone list 14/06/2019’ dated 14 June 2019.
o   ‘2019 Father’s Day Event’ dated 26 August 2019.
o   ‘New product searching request from Bruce, or new supplier’ dated 25 September 2019.
o   Promotion details dated various.
o   ‘Dome glass UV glue’ dated 4 September 2018.
o   ‘New laptop & table sleeve bag’ dated 4 February 2019.
o   ‘EFM cases and lifeproof case order plan’ dated 5 February 2019.
o   ‘Stock in more portable power bank’ dated 17 July 2019.
o   ‘Universal case order plan from Mercury’ dated 15 August 2019.
o   ‘2019 New clocks Christmas and new year’ dated 9 September 2019.
o   ‘M2609. New products searching request from Bruce or other supplier’ dated 26 September 2019.
o   ‘2019 New torches for Christmas and new year’ dated 29 October 2019.
o   ‘2019 New style car holder’ dated 11 November 2019.
o   ‘New store and new products’ dated 10 April 2017.
o   ‘Advertising product brands plan’ dated 1 May 2017.
o   ‘New Iphone 8/8 Plus & Galaxy Note 8’ dated 14 September 2017.
o   ‘Marketing plan and promotion’ dated 15 September 2017.
o   ‘New repair service plan and price adjustment’ dated 18 September 2018.
o   ‘New repair service (BYO & DIY)’ dated 3 October 2018.
o   ‘Christmas 2018; RC Products, Drones and helicopters’ dated 7 December 2018.
o   ‘2019 Mother’s day promotion plan’ dated 24 April 2019.
o   ‘2019 Jazz and Jumper Festival promotion plan’ dated 7 July 2019.
o   ‘2019 Halloween promotion plan’ dated 23 October 2019.
o   ‘Advertisement and promotion plan for Christmas’ dated 19 November 2019.
o   New product order dated various.
o   Product order, tax invoices and packing list by various providers.
o   Monthly bookkeeping reports dated various.
o   Stock Check Log dated various.
o   Stock checklist dated various.
o   Operation plan dated various.
o   Applicant interview dated various.
o   Various CVs and resumes.
o   New staff training log dated various.
o   Employee performance checklist dated various.
o   Job advertisements using Gumtree dated various.
o   Business Plan dated 1 March 2019.
o   Essential rules for safety dated 9 January 2017.
o   Products guideline dated 9 January 2017.
o   Service guideline dated 9 January 2017.
o   Sales guideline dated 9 January 2017.
o   Exchange and refund policy dated 9 January 2017.
o   Routine Activity Summary dated various.
o   Weekly equipment and chemical check log dated various.
o   Weekly OH&S check log dated various.
o   Rose City Shopping Centre Emergency Training dated 22 August 2019.
o   Correspondence from Department of Child Safety, Youth and Women dated various.
o   Victim impact statement prepared by the nominee dated 12 June 2018.
o   Information sheet.
o   New display organisation dated 21 September 2018.
o   Nomination approval letter from Department of Immigration and Border Protection dated 28 February 2015.
o   VEVO Check of Youngjin You as of 1 April 2015.
o   Payslips of Youngjin You issued by the company dated various.
o   Payslips of the nominee dated various.
o   PAYG payment summary dated 1 July 2019.
o   Various job advertisements of various dates.
o   CCIQ Assessment Statement dated 7 November 2016.
o   Regional certifying body advice dated 8 November 2016.
o   Letter of support by the applicant dated 28 October 2016.
o   Previous submission as to the recruitment effort, which was provided to the CCIQ in November 2016.
·Organisation chart, version 2020, showing: director Mr Jee; merchandiser Mr Jee; store manager (the nominee); and two sales assistants, with a further sales assistant position vacant.
·Letter from Centre manager of Rose City Shoppingworld in Warwick in support of the nominee as store manager dated 15 January 2020.
·Very large selection of administrative documents for the business.
·Letter dated 4 March 2020 relating to tasks of the nominated position and other legislative requirements.
Following the hearing, documents including those listed below were provided:
- A large number of administrative documents for the applicant business.
- Resumes for candidates: Mangyun Park Whale (studied in Korea); Minseo (Min) Son (studied in Korea); Duyeop Kang (Kyle) (studied in Korea); Audrey Kim (studied in Korea); Aldo Mariya Jose; Mohammed Ahmed; Nandakumat Nagesh; Rounaq Mongia (India).
- New staff training log.
- Employee performance checklist.
- Business plan for employment dated 01 March 2019.
- Essential Rules for Safety.
- Products guideline.
- Service guideline.
- Sales advice.
- Exchange and Refund Policy.
- London Fire Safe Report.
- Weekly equipment & chemical check log for several weeks.
- Warwick Funplus OH&S week, updated for several weeks.
- Rose City shopping centre emergency training for several weeks.
- Letter to the nominee dated 5 June 2018 regarding Restorative Justice Conference.
- Victim impact statement regarding theft from business.
- New display organisation for business.
- Request for audio of hearing and response emailing audio file dated 13 March 2020.
- ATO Integrated Client Account from 1 July 2016.
- PAYG payment summaries for all staff for FY 2018 and 2019.
- Daily usage - Bank statements FY 2018 to February 2020.
- Savings account statements - FY 2018 to Feb 2020.
- Letter from Tribunal under s.359A of the Migration Act 1958 (the Act) regarding advertisement.
- Letter from registered migration agent dated 1 May 2020 in response to s.359A invitation.
- Signed statement from the applicant dated 30 April 2020.
The Tribunal has carefully considered all documents.
The Tribunal has carefully accounted for all documents by comparing the electronic file of documents to the list above and by opening each electronic document to ensure that all attachments are recorded in the list above. The Tribunal is satisfied that all documents have been properly accounted for and included in the list above.
Postponements, adjournments and extensions of time
During the hearing, the applicant requested a short adjournment to seek advice regarding a matter put under s.359AA of the Act and this was duly granted.
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 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 (see legislative instrument IMMI) and the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·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.
The applicant can choose to meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii) and has chosen to meet the latter.
Regulation r.5.19(4)(h)(ii)(C) provides as follows:
(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;
The applicant sought to provide evidence of meeting this regulation by means of advertising the position. The Tribunal noted that the position was advertised online on Adzuna on 10 November 2016 and included the requirement ‘Asian language speaker preferred’.
The Tribunal asked the director why he had added this stipulation to the advertisement and he responded in English as follows:
For the communicating of course, of course. And ah this is probably they my experience. So I have, we have bit of different culture of job space, I think than Australian or other western people for doing better work and I explain what I want them to do and what I want them to be. The Korean language is much better than English and I can speak Chinese as well.
The online Oxford Dictionary defines ‘preferred’ as ‘like (one thing or person) better than another or others; tend to choose’.
The Tribunal considers that the wording of the advertisement means that the applicant would like one person better than another or others if the person were an Asian language speaker. The Tribunal finds this would deter an Australian citizen or an Australian permanent resident who is not an Asian language speaker who is living in the same local area as Warwick from applying for the position as they would reasonably believe that the applicant would like a person who is an Asian language speaker better.
The Tribunal considered the explanation given by the director in the hearing. There was no argument put forward that Warwick has a cohort of potential customers who only speak an Asian language and there was no argument that the suppliers to the business only speak an Asian language, although even if this were advanced it is noted that all the suppliers’ invoices and packing lists provided were in English. The reason is that the director prefers to communicate in Korean, although it was noted in the hearing that the director could communicate with the Tribunal in English. He also believes that people do ‘better work’ if they speak in Korean. These are not operational reasons; rather they are a matter of preference for the director.
The Tribunal noted, Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015). In this case, the Tribunal had found:
the Tribunal considers that the additional stipulation of the Asian language preference criterion in the skill set advertised for the position serves to limit significantly the potential field of applicants available to perform the work or attracted to the role… In the particular circumstances above, the Tribunal finds that the addition of the criterion ‘asian language highly preferred’ in the advertisement has served to limit the range and scope of persons potentially attracted to apply for the position of project administrator, including Australian citizens or permanent residents living in the local area of Murray Bridge. The Tribunal is not satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
In Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015) there had been an argument put forward that the nominated position had to communicate with other employees who were from non-English speaking backgrounds but that is not the case here. The advertisement in the Swanport case had stipulated ‘Asian language highly preferred’ rather than ‘Asian language speaker preferred’, which is the case here.

Judge Brown addressed this at [108], [109] and [115] as follows:
In this case, it is asserted that there was no evidence to support the Tribunal’s conclusion. I do not agree that this is the case. The major piece of evidence before the Tribunal was the text of the advertisement itself, which contained the job criterion “Asian language highly preferred”.
Necessarily, in my view, a possible and logical conclusion to be drawn from a plain reading of the advertisement was that a number of applicants would be deterred from applying for the position because they had no Asian language skills. This follows from the use of the phrase highly preferred, which literally means that applicants with an Asian language would be liked better (preferred) by the applicant to a significant degree (highly).
Mr Albert contends that the evidence available to the Tribunal indicates that a number of applicants did in fact apply and were found wanting. This is the case, but this factor alone does not negate the logical possibility that an advertisement, without the specification, would have attracted more applicants, who were suitably qualified and who were Australian citizens or permanent residents than applied to the advertisement in question, which in effect was the finding of fact made by the Tribunal.
On 20 April 2020, the Tribunal sent an invitation to the applicant under s.359A of the Act to comment on information as follows:
In conducting the review, we are required by the Migration Act 1958 to invite Mr Jee Electronics Pty Ltd to comment on or respond to certain information which we consider would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information. The particulars of the information are:
·The nominated position of Retail Manager was advertised on Adzuna on 10.11.2016 and the CCIQ regional certifying body assessment of 7 November 2016 noted the following’ Recruitment efforts – 3 applicants. All lacked qualifications/skills/experience’.
·The Tribunal notes that the advertisement for the position included the requirement ‘Asian language speaker preferred’.
This information is relevant to the review as r.5.19(4)(h)(ii)(C) of the Migration Regulations 1994 requires that 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.
If the Tribunal relies on this information in reaching a decision, it may find that the additional stipulation of the Asian language preference criterion in the skill set advertised for the position serves to limit significantly the potential field of applicants available to perform the work or attracted to the role.
As such the Tribunal may find the position could have been filled by an Australian citizen or permanent resident who is living in the same local area had the applicant advertised the position without the stipulation thus attracting suitably qualified Australian citizens or permanent residents to apply for the position, and this could be the reason or part of the reason, for affirming the decision that is under review.
Mr Jee Electronics Pty Ltd is invited to give comments on or respond to the above information in writing.
The comments or response should be received by 5 May 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If Mr Jee Electronics Pty Ltd cannot provide written comments or response by 5 May 2020, it may ask us for an extension of time in which to provide the comments or response. If Mr Jee Electronics Pty Ltd makes such a request, it must be received by us before 5 May 2020 and Mr Jee Electronics Pty Ltd must state the reason why the extension of time is required. We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
In the registered migration agent’s response of 1 May 2020, the agent makes a number of points and the Tribunal will consider each of these.
It is useful to have the full text of the advertisement placed on Adzuna. It is reproduced below:
Store manager Position Description
Position title Store manager
Position Description Full- time Permanent on-going
Standard 38 hours Mon-Fri 0900 - 0530
Base Salary (per annum) 45,000 — 50,000
Duties and Responsibilities
- Welcoming customers
- promoting services and products
- planning promotions and sale items for smooth turnaround
- taking bulk orders and out-of-stock orders from customers
- managing stocks for placing orders and clearance
- maintaining stock levels and stock records
- keeping record of financial transactions
- cash handling
- analyzing financial status and advising management
- ensuring service standards
- customer service management — exchange requests and warranty etc
- training and supervision of staff
- supporting repair technician
Essential Criteria
- Must be Reliable and accountable (Very important)
- Excellent customer dealing skills
- Diploma of Management or Business, or at least 3 years of work exp. in retail setting
- Fluent English
- Asian language speaker preferred
- Basic knowledge of electronics
- Outgoing
- Punctual
- Self motivated
- ability to take initiative
- Positive and good at learning new stuff.
- Enthusiastic
Apply Now!
The first point made by the migration agent’s submission is as follows:
the advertisement…bears no inference of intention to hinder any Australian citizens or permanent residents’ applications.
The Tribunal does not accept this contention as the use of ‘preferred’ in the stipulation ‘Asian language speaker preferred’ from the dictionary definition in [20] and [21] infers that the applicant would like one person better than another or others, in that the applicant would like the person to be an Asian language speaker. The Tribunal finds this would deter an Australian citizen or an Australian permanent resident who is not an Asian language speaker who is living in the same local area as Warwick to apply for the position as they would reasonably believe that the applicant would like a person who is an Asian language speaker better.
The second point in the migration agent’s submisson is that:
A clear indication of English fluency and other criteria negates such concerns…the specific choice of such words as ‘very important’ and ‘must be’ for the criterion of reliability and accountability in the advertisement were emphasised as a must-have requirement. As such, the applicant submits that the work ‘preferred’ needs to be analysed in its own dictionary meaning that if options are available to the applicant, such features may be attractive but no impediments are applied for other potential candidates.
The Tribunal does not accept this argument as a potential candidate who is an Australian citizen or Australian permanent resident may have ‘fluent English’ but not be an ‘Asian language speaker’ and decide reasonably that the applicant would like a person who was an Asian language speaker more and opt not to apply for the position. The fact that words such as ‘very important’ and ‘must be’ were used for other criteria does not change the fact that ‘preferred’ was used in relation to being an ‘Asian language speaker’ and as discussed above, this would deter Australian citizens or Australian permanent residents who did not speak an Asian language. The registered migration agent argues that this feature may be ‘attractive’ but there are ‘no impediments’ for other candidates. The Tribunal does not agree that a criterion being ‘attractive’, or in this case ‘preferred’ or ‘better liked’ would not deter other candidates such as Australian citizens or Australian permanent residents who did not speak an Asian language.
The third point in the agent’s submission goes to the court’s decision in Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015) and that the advertisement in that case had two criterion ‘Asian language highly preferred’ and ‘ability to draft basic correspondence in multiple languages essentially Indian/Asian’. The registered migration agent argues that the ability to use multiple languages is a necessary skill for the employer in that case but not for the applicant in this case since ‘fluent English’ is the requirement.
The criterion ‘ability to draft basic correspondence in multiple languages essentially Indian/Asian’ was argued as an operational need but the court nonetheless found there was no error in the Tribunal’s decision, which was based on the Asian language criterion. In fact, in the hearing the applicant gave reasons for the Asian speaker criterion which did not relate to operational need and may lead to the finding that the advertisement was tailored specifically for this nominee.
The fourth point in the agent’s submission has multiple arguments:
The ability to speak an Asian language, below the English proficiency requirement, is merely an advantage that would make a job applicant stand out.
The advertisement, in fact would have discouraged candidates who are not Australian citizens or permanent residents that do not speak English as their primary language.
It would be illogical to reach a conclusion that the applicant’s advertisement for the position served to limit significantly the potential field of Australian citizens and permanent resident applicants who are capable of the Duties and Responsibilities, that does not suggest any language criteria because of a mere secondary language preference in the criteria.
The findings as to significant degree was justified with further connotation by use of another word such as ‘highly preferred’ or ‘must have’ which is missing in this nomination application.
The Tribunal does not accept that the stipulation in this case is merely an ‘advantage’ that would make a candidate ‘stand out’ because an Australian citizen or Australian permanent resident may not be an ‘Asian language speaker’ and decide reasonably that the applicant ‘preferred’ and would like a person who was an Asian language speaker more, and opt not to apply for the position.
The argument Australian citizens or Australian permanent residents who do not speak English would be discouraged from applying is not at issue here. The position speaks for itself, as a retail manager would necessarily be selling products and services to members of the public in regional Warwick who would overwhelmingly speak English or English as a second language. An astute applicant without English language skills would realise the job was not suitable for them and look for another position where conversational English was not required.
The Tribunal has considered the argument that the court made its decision based on the degree of preference, namely ‘highly preferred’ rather than ‘preferred’ as in this case. The Tribunal does not accept this argument because if an Australian citizen or Australian permanent resident notes that they are not an ‘Asian speaker’ but an ‘Asian speaker’ is ‘preferred’ or ‘liked more’ then some of them will be deterred from applying for the position. It may or may not make any difference if an ‘Asian speaker’ is ‘liked more’ or ‘highly liked’ since this stipulation will deter some applicants who would not have been deterred had the stipulation not been in the advertisement in the first place.
The degree to which the stipulation would deter applicants who are Australian citizens or Australian permanent residents was addressed by Judge Brown in Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015) at [114] where his Honour observed:
The only definitive way to establish that the criterion had no effect, on the number of job applicants, would have been to place an advertisement, at the same time and in the same areas, without the specification, and see if there were there the same, more or less applicants than applied to the job with the Asian language preference.
The registered migration agent states further that the applicant has clarified that the preference in the advertisement is for the benefit of the position where the successful candidate may have to assist him sourcing products from major supplier countries, namely South Korea and China. The Tribunal has considered this but notes that the applicant already deals with a South Korean company, Mercury Corporation, and numerous invoices and other documentation are provided from it, which are all in English. The Tribunal considers that suppliers appear to all have their promotional material in the language of the customer country. This requirement was not raised in the hearing when the Tribunal asked the applicant about the stipulation. For these reasons the Tribunal gives this argument no weight.
The registered migration agent also states that the applicant needs the preference because ‘a secondary language, would suggest that a candidate has further exposure to different cultures which would be desirable for the interest of the business’. The Tribunal considers there may be positions where exposure to different cultures would be desirable but a retail manager in an electronics supply and repair business in regional Queensland is not one of them.
The Tribunal has considered the regional certifying body (RCB) advice by the CCIQ contained in Form 1404 dated 8 November 2016, which states that the nomination ‘satisfies’ the criterion ‘the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position’.
The Tribunal notes the “RCB assessment Statement” dated 7 November 2016 and submitted by the applicant. This states:
Can't be filled locally:
Recruitment efforts : Adzuna 051016. 3 applicants. All lacked quals/skills/experience..
RCB local knowledge: Would be difficult in regional Q - needs management, marketing, HR + electronics knowledge —sufficient for sales and to assist repairer
No local available acceptable; Very difficult list of requirements so accept unlikely.
The RCB states: that the three applicants lacked qualifications/skills/experience; ‘no local available acceptable’; it ‘would be difficult in regional Q’ and there was a ‘very difficult list of requirements so accept unlikely’. The Tribunal notes that the RCB does not refer to the stipulation regarding ‘Asian language speaker preferred’ so it is unclear whether it considered this or not. Regardless, the Tribunal and the Minister are not bound to accept the advice of the RCB and in this case, the Tribunal prefers its own analysis.
The Tribunal notes the statement dated April 2020 from the director as below:
I admit that I put "Asian language speaker preferred' in the advertisements, but that was merely one of the attractive features from prospective candidates. At the hearing on 12 March 2020, I conceded the benefits Mr Lee brought in to my business. I note we use the same language and his diligence at work and strong work ethic contributed my business's performance. But, at the time of the advertisement in 2016, I assure that I would have hired the right person who would assist prosperity of my business as a store manager and Asian language speaker preference was not to be added to deter other Australian people's applications.
The Tribunal notes that the applicant ‘would have hired the right person who would have assist prosperity of my business’, however it considers that ta number of right persons who were Australian citizens and Australian permanent residents may have been deterred from applying for the position because of the stipulation ‘Asian language speaker preferred’. The applicant states the stipulation was not added to deter other Australian people’s applications. Even if the Tribunal accepts that it was not the intention of the applicant to deter Australian citizens and Australian permanent residents from applying, the Tribunal finds that this is the outcome of the stipulation.
The Tribunal finds that the position could be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as Warwick had the advertisement not had the stipulation ‘Asian language speaker preferred’. As such, the requirement in r.5.19(4)(h)(ii)(C) that the position ‘cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area’ as Warwick is not met.
The applicant did not seek or request that their application be considered under r.5.19(4)(h)(i), however, for completeness the Tribunal will consider it against this regulation.
For nominations made before 18 March 2018, r.5.19(4)(h) is expressed as alternatives. However, a nominator would only be eligible to satisfy one or the other, depending on the fee paid at the time of application lodgement. This is because r.5.19(2) requires that an application for approval of a nomination must be accompanied by the fee mentioned in r.5.37 and different fees are prescribed depending on which limb of r.5.19(4)(h) a nominator is seeking to satisfy. For an application seeking to meet r.5.19(4)(h)(ii) (i.e. regional), there is no fee payable (r.5.37(3)). Therefore, if a nominator now seeks to satisfy r.5.19(4)(h)(i), they would not be able to meet r.5.19(2)(b).
The Tribunal finds the applicant has not paid the fee applicable to an application under r.5.19(4)(h)(i) and therefore does not meet r.5.19(4)(h)(i).
Accordingly the requirements of r.5.19(4)(h) are not met.
For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the 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.
De-Anne Kelly
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).

[2020] AATA 3142

20 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Tax Return	2018	2019
Income	444,239	464,898
Expenses
Advertising	5,199	8,572
Wages	145,940	164,425
Superannuation	13,864	15,623
Other expenses	304,792	268,804
Total Expenses	469,795	457,424
Profit/loss	(25,556)	7,474