MR SUSHI KING PTY LTD (Migration)

MR SUSHI KING PTY LTD (Migration) [2020] AATA 3114 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MR SUSHI KING PTY LTD
CASE NUMBER:  1936479
HOME AFFAIRS REFERENCE(S):          BCC2019/5680390
MEMBER:Karen McNamara
DATE:4 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 4 June 2020 at 9:37am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Café or Restaurant Manager – genuine need – value added by position – role of position within nominator’s business structure and operations – four restaurants and a takeaway shop in Central West NSW – ongoing skills shortages – decision under review set aside
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 Home Affairs (the delegate) on 8 December 2019 to reject the application by Mr Sushi King Pty Ltd (the nominator/applicant) for approval of the nomination of a position under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 11 November 2019. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: r.5.19(3)(a). If any of the requirements are not met, then the application must be refused: r.5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the nomination did not satisfy r.5.19(9)(d) of the Regulations because the application did not identify a genuine need for the nominee to be employed in the position under the direct control of the nominator.
The applicant lodged an application for review with the Tribunal on 11 November 2019.
The Tribunal received a copy of the delegate’s decision record with the application for review.
Mr Semin Jeon appeared on behalf of the applicant before the Tribunal on 28 May 2020, to give evidence and present arguments. The Tribunal also received oral evidence from the nominee (Mr Sedong Jeon) in the related matter for the Subclass 187 visa (AAT Case file 2002142). The related matters were heard concurrently in a combined hearing and heard via telephone.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
At the conclusion of the hearing, the Tribunal invited the applicant and nominee to provide further documentation including copies of the applicant’s Business Activity Statements (BAS) returns for the period July 2017 to June 2018 (inclusive), Workers Compensation Certificate of Currency, business and nominee’s bank account statements May 2018 to May 2020, evidence of payment of training contribution, nominee’s PAYG, Notice of Assessment (NOA) 2019 and superannuation statement.
The applicant provided to the Tribunal the above-mentioned documentation on 29 May 2020.
The applicant was represented in relation to the review by its registered migration agent. The agent attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in r.5.19(4) and the stream specific requirements set out in r.5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
BACKGROUND
ASIC records provided by the applicant to the Tribunal show that the company was registered on 24 July 2012. The applicant owns and operates four restaurants and a takeaway shop in Central West Region of NSW. Three restaurants are located at Orange, one at Mudgee and the takeaway shop at Parkes. The nominated position is based at the Mr Lim Restaurant in Orange. Mr Lim opened in 2016 and is a 90-seat dining restaurant which offers Chinese, Japanese and Korean cuisine. The nominee has been working in the position of Restaurant Manager at Mr Lim since it opened in 2016.
On 11 November 2019, the applicant lodged an application for an employer nomination approval for the position of Café or Restaurant Manager (ANZSCO 141111) under the Regional Sponsored Migration Scheme - Direct Entry stream. The nominated salary is $55,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
Application requirements – r.5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in r.5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in r.5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Migration Act 1958 (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: r.5.19(2)(fa), (fb). The liability is imposed by s.140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018, with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. The position was identified, and a person was identified in relation to that position. An occupation in relation to the position was identified as was the subclass and stream to which the nomination relates.
As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant.
As the application was made after 12 August 2018, the applicant has provided evidence in the form of a receipt issued by the Department on 11 November 2019 for payment of the nomination training contribution charge.
The Tribunal therefore finds that the application was made on or after 12 August 2018 and before 16 November 2019 and that the application was accompanied by the training contribution charge and identified the annual turnover.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in r.5.19(2) and that r.5.19(4)(a) is met.
No adverse information known to Immigration – r.5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal to indicate that there is adverse information known to Immigration about the nominator or an associated person.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(b) is met.
Mandatory licencing, registration and memberships – r.5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Café or Restaurant Manager (ANZSCO 141111) and the date of application is 11 November 2019.
The Tribunal is unaware of mandatory requirements for a Café or Restaurant Manager to hold a licence or a registration of a particular kind or be a member (or a member of a particular kind) of a particular professional body. In this instance the mandatory license or registration provisions stated in 5.19(4)(c) are not relevant.
Accordingly, the Tribunal is satisfied that r.5.19(4)(c) is met.
Satisfactory compliance with employment laws - r.5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal that indicates the nominator does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the Tribunal is satisfied that r.5.19(4)(d) is met.
Training contribution debts – r.5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s.140ZO of the Act, relating to recovery of nomination contribution charges and penalties for underpayments, has been paid in full.
There is no evidence before the Tribunal to show any debt due by the nominator under s.140ZO.
Accordingly, the Tribunal is satisfied that r.5.19(4)(da) is met.
Actively and lawfully operating business – r.5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The Tribunal accepts on the evidence before it that the applicant operates four restaurants and a takeaway food facility in Central West regional, NSW. Based on the material provided to the Tribunal, including; financial statements, BAS returns, ASIC Company details, business bank statements and commercial lease documentation, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia.
Accordingly, the Tribunal is satisfied that r.5.19(9)(a) is met.
Labour hire businesses – r.5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the Tribunal is satisfied that r.5.19(9)(b) does not apply.
Genuine need for employment – r.5.19(9)(c) and r.5.19(9)(d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and r.5.19(9)(d) requires this need to be genuine.
In considering whether the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by the applicant and the nominee. In support of the need for the position, the applicant has provided evidence in the form of a supporting submission dated 9 January 2020 and oral evidence during the hearing on 28 May 2020, as to the value the position adds to the operations of the business and the role of the position within the business structure and operations.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(9)(d) of the Regulations because the delegate was not satisfied that the application identified a genuine need for the nominee to be employed in the position under the direct control of the nominator.
The Tribunal has formed a different view and accepts the evidence presented by the applicant that there is a genuine need for the position of Restaurant Manager in his restaurant, Mr Lim based at Orange NSW. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application.
The evidence before the Tribunal indicates the applicant operates four restaurants and a takeaway shop in Central West NSW. The applicant gave evidence at the hearing that the business requires the position of Restaurant Manger to manage the Mr Lim restaurant. The Tribunal was told that the applicant was initially managing all his restaurants but found it difficult to effectively manage all aspects of the respective restaurants and be physically present at all four. The applicant gave an example of the difficulty he encountered in attempting to manage reservations and place food orders for the respective restaurants, particularly when he was required to act as Chef due to staff shortages.
Evidence was provided at the hearing that the applicant has now appointed managers to three of his restaurants (including the nominee). Since the appointment of the respective managers, the reservation and ordering process is much smoother and allows the applicant to concentrate on the management of his fourth restaurant and takeaway shop. The applicant told the Tribunal that when staff are unavailable, he will provide support by acting as Chef or Restaurant Manager. The applicant is currently working as the Restaurant Manager in his new restaurant Avido Restorante, as the position is still vacant. The Tribunal notes that it is not unusual for a restaurant owner to act as a chef or manager in managing their restaurants, particularly in a regional area where employment is problematic due to ongoing skills shortages.
The applicant told the Tribunal that the nominated position adds value to the business in so far as Mr Lim is an upmarket restaurant where customers expect to be looked after and the menu reflects the demands of the customers. The position of Restaurant Manager provides this customer service and plans appropriate menus to suite customer demands. The Tribunal was told that the position is an ongoing existing position which has existed since the applicant opened the Restaurant in 2016 and that the applicant has and continues to advertise for restaurant managers on job search websites, but has found it extremely hard to find a suitable candidate for the position.
The Tribunal notes that the nominee has worked for the applicant since 2013. Due to the applicant’s inability to recruit a suitable candidate to the position of Restaurant Manager, the applicant offered the position to the nominee.
On the totality of evidence before it, the Tribunal is satisfied that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator and the need is genuine.
Accordingly, the Tribunal is satisfied that r.5.19(9)(c) and (d) are met.
Future employment – r.5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, r.5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, r.5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, r.5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
The Tribunal has had regard to the applicant’s financial information and the nominee’s contract of employment. The business’s BAS returns for the 2017/18 financial year record sales of $2,765,178 and salary and wages expense $694,447. The business’s 2018 financial statements report income of $2,515,003, net profit $27,379 and total net equity of $84,653. The business’s 2018/19 financial year BAS returns record sales of $3,174,606 and salary and wages expense $804,417. The business’s 2019 financial statements, report income of $2,886,757, net profit $147,846 and total net equity of $194,097.
The nominee’s contract of employment signed and dated 18 March 2020, sets out the terms and conditions of the nominee’s employment and indicate that the period of employment is two years upon the granting of a visa The contract stipulates the base salary is $55,000 per annum with hours of work 38 hours per week. There is no term excluding an extension of the contract.
In considering whether the business has the capacity to pay the annual market salary rate for the occupation (in this instance $55,000 per annum) to the nominee for two years, the Tribunal has taken into consideration evidence before it, including the applicant’s financial statements, BAS returns (2018 & 2019 financial years), business bank statements (May 2018 to May 2020) and payroll records, which show the applicant has demonstrated its capacity to meet payroll and operating costs since 2017.
The Tribunal has also taken into consideration the nominee has been employed by the applicant on a full time basis since 2017. The nominee’s bank account statements, PAYG’s, NOA’s and applicant’s payroll records, support the nominee has received remuneration of $55,000 per annum plus 9.5% superannuation.
The Tribunal notes that the business has reported substantial revenue with proportionally aligned profit. The applicant’s 2018 and 2019 financial year ATO Tax Returns and correlating BAS statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.

At the hearing the Tribunal discussed with the applicant the impact of COVID -19 pandemic on his business. The applicant told the Tribunal that whilst in the first week of lockdown restrictions his business recorded an 80% decrease in sales, however his business has dramatically improved through the provision of takeaway services. Whilst the lockdown restrictions will have some immediate impact upon the applicant’s revenue and profit, the applicant has operated in the Central West region for a considerable time and is confident the COVID- 19 restrictions will not impact materially in the medium to long term.
The Tribunal accepts the applicant’s evidence as to market salary research and is satisfied that the remuneration package falls within the median range for similar positions in regional NSW and is equivalent to the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(e), (f) and (g) are met.
Annual earnings – r.5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in r.2.72(15) must be met, applying r.2.72(15) and (16) as if r.2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/03. Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/03: r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/03, unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa). However, in this case, the power under r.2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).
Evidence before the Tribunal show that nominee’s annual earnings are $55,000 per annum. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.
The Tribunal has considered the evidence before it and is satisfied that the applicant in determining the annual market salary rate for the position, undertook salary market research including reference to Seek.com, Indeed and the Hospitality Industry (General) Award. The nominee’s Contract of Employment show that the nominee’s annual earnings are $55,000 per annum plus superannuation. The nominee’s PAYG summaries and bank statements show that the nominee has been paid this amount. This amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specified this as $53,900). There is no evidence before the Tribunal to indicate that the annual market salary rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation.
For these reasons the requirements of r.2.72(15) are satisfied.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(h) is met.
No information to indicate less favourable employment conditions – r.5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

72. The Contract of Employment (dated 20 March 2020) sets out the terms and conditions of employment and indicates that the nominee’s salary will be $55,000 per annum with hours of work 38 hours per week. The nominee’s leave entitlements are annual leave, personal leave, carers leave, compassionate leave, parental leave, community service leave and long service in accordance those set out in the National Employment Standards in the Fair Work Act 2009.

The Tribunal is satisfied on the totality of the evidence before it that there is no evidence before the Tribunal to indicate that there is information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal is satisfied that r.5.19(9)(i) is met.
Tasks correspond to specified occupation – r.5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in r.5.19(10) or r.5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a

Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: r.5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: r.5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under r.5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: r.5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: r.5.19(12)(f).
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Orange, NSW postcode 2800, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(12)(a) and (b) are met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position. The applicant told the Tribunal that they have advertised the position online on Seek and Gumtree in attempts to find a suitable person for the position and continue to advertise as he has a vacancy for a Restaurant Manager in one of his other establishments. The applicant told the Tribunal that the majority of applicants for the position were based overseas and were looking for sponsorship for permanent residency.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(12)(c) are met.
The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 141111 for the occupation Café or Restaurant Manager and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided comprehensive description of the daily duties and tasks carried out by the nominee. The Tribunal is satisfied based on the evidence before, it that that the tasks performed in the position correspond to the tasks as per ANZSCO 141111 description, for the occupation of Café or Retail Manager which is an occupation specified in the relevant legislative instrument.
The position of Café or Restaurant Manager (ANZSCO 141111) is referred to in ANZSCO as a skill level 2 position. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. Department records show that the nominee holds a Diploma of Leadership and Management from Crown Institute of Business and Technology (Sydney) and Certificate III in Commercial Cookery from TAFE NSW. The nominee has over three years full time experience as a Restaurant Manager and approximately four years in a part time capacity.
Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that he is suitably qualified for the position and that the nominee is operating at the appropriate skill level.
Accordingly, the requirements of r.5.19(12)(d) and ( e) are met.
The Tribunal has cited the completed Form 1404 dated 5 September 2019 from the relevant RCB, Regional Development Australia, Central West, indicating that they are satisfied that the identified person would be paid at least the annual market salary rate for the occupation; there is a genuine need for the identified person to be employed in the position under the direct control of the nominator; and the position can not be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.
Accordingly, the requirements of r.5.19(12)(f) are met.
Given the above findings, the Tribunal is satisfied that r.5.19(12) is met. Accordingly, r.5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2020] AATA 3114

4 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness