New Era Hospitality Pty Ltd (Migration) - [2023] AATA 550

New Era Hospitality Pty Ltd (Migration) [2023] AATA 550 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  New Era Hospitality Pty Ltd
REPRESENTATIVE:  Ms Nishta Ramnoruth
CASE NUMBER:  1917094
HOME AFFAIRS REFERENCE(S):          BCC2017/4805180
MEMBER:Terrence Baxter
DATE:20 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 March 2023 at 9:16am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – retail manager – tasks of position – applicant previously operated franchise, now operates different independent business – relocation does not change nominated position – expansion of product range and services under nominee’s management – trading profits despite period of non-trading – nominee the brother of director of applicant – no suitably qualified local applicant applied for position – nominee’s training and certification by regional certifying body – director’s limited involvement in management – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Harinsco Pty Ltd v MICMSMA [2021] FCCA 528
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 on 12 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, New Era Hospitality Pty Ltd, applied for approval on 15 December 2017. The applicant nominated Mr Abdul Waheed (the nominee) in the position of Retail Manager. At the time of the application, the applicant operated a business known as Sumo Salad Sunshine Plaza under a franchise agreement in premises situated at 154-164 Horton Parade, Maroochydore, Queensland. The applicant ceased operating that business on 31 January 2022 and has subsequently purchased a new business located at 59 Aerodrome Road, Maroochydore. The applicant employed the nominee at the Sumo Salad business and continues to employ him at the new business, which trades as 59 Fish.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not correspond with the tasks of an occupation specified by the Minister in the relevant legislative instrument.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 June 2019.
The director of the applicant, Mr Majeed Abdul Rahim, appeared before the Tribunal by video conference on 5 October 2022 to give evidence and present arguments. Mr Rahim appeared before the Tribunal by video conference a second time on 22 February 2023 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearings by video conference. The Tribunal determined it was reasonable to hold the hearings by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by video conference.
The applicant was represented in relation to the review by Ms Nishta Ramnoruth of Migration Guru Pty Ltd. The representative attended both Tribunal hearings by video conference.
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 requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence presented prior to the first hearing
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.A Sumo Salad franchise agreement of the applicant.
b.A job advertisement for the position on Gumtree.
c.Market salary research.
d.Correspondence and a Form 1404 issued by the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 29 November 2017.
e.An employment contract of the nominee dated 30 October 2017.
f.A business plan of the applicant.
g.Profit and loss projections for the business.
h.A franchisee management training certificate awarded to the nominee.
i.An ABN Lookup form of the applicant.
j.Photos of the business premises.
k.Evidence of the applicant’s tenancy of its business premises.
l.An organisational chart.
m.A submission from Mr Rahim dated 30 October 2017.
n.A position description.
o.Evidence of the tasks performed by the nominee in the position.
p.Activity statements for the period from January 2018 to December 2018.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.An ASIC company summary.
c.An updated current ABN Lookup form.
d.A historical ABN Lookup form.
e.An ASIC current company extract.
f.Activity statements for the period from July 2020 to June 2022.
g.Company tax returns for the 2020 and 2021 financial years.
h.A financial report for the 2021 financial year.
i.A payroll summary report prepared by the applicant for the 2021 financial year.
j.Updated evidence of the applicant’s tenancy of its business premises.
k.Copies of various documents provided to the Department.
l.A letter addressed to the nominee from Mr Rahim regarding job responsibilities of the position dated 9 March 2022.
m.Promotional material of the applicant.
n.A product order sheet of the applicant.
o.An employment contract of the nominee dated 9 March 2022.
p.An updated organisational chart.
q.Submissions from the representative dated 27 September 2022.
r.A deed of covenant and assignment of lease of the applicant’s current business premises.
s.An ASIC company summary of Nasmaj Enterprises Pty Ltd, a company associated with the applicant.
t.Current market salary research.
u.An NDIS plan approval notification dated 28 July 2022.
v.A submission from Mr Rahim dated 27 September 2022.
w.A certificate IV in Information Technology (Networking) awarded to the nominee.
x.A Bachelor of Accounting awarded to the nominee.
y.A food safety supervisor statement of attainment awarded to the nominee.
z.A statutory declaration made by the nominee on 27 September 2022, accompanied by various annexures.
Evidence presented at the first hearing regarding the applicant’s operations
Mr Rahim confirmed that the applicant had previously operated a salad bar business under a franchise arrangement from Sumo Salad. He stated that the business now operated by the applicant traded as 59 Fish and was completely independent. He said that sales of the business had increased by 20% to 30% since the applicant acquired the business. Mr Rahim stated that the applicant had not traded for a period of almost two months after the sale of the Sumo Salad business at the end of January 2022 and the opening of the new business.
Mr Rahim said that the nominee, as Retail Manager of the business, had broadened the range of products supplied by the applicant from just seafood to now include salads, rolls and wraps. He said that the services offered by the applicant included a takeaway service, but that the applicant also offered a dine-in service with a capacity to seat approximately 40 patrons.
Mr Rahim also gave evidence regarding the tasks performed by the nominee in the position.
Evidence presented after the first hearing
After the first hearing, the applicant produced to the Tribunal the following documents:
a.A submission from the representative dated 19 October 2022.
b.Responses to the advertisement for the position on Gumtree.
c.A statutory declaration made by Mr Rahim on 19 October 2022, accompanied by various annexures regarding the applicant’s advertisement for the position.
d.A letter from an external recruitment agency address to Mr Rahim dated 19 October 2022, accompanied by emails regarding recruitment.
e.Financial reports for the 2019, 2020 and 2022 financial years.
f.A submission from the applicant’s accountant dated 17 October 2022.
g.An invoice for rent for the applicant’s business premises dated 1 October 2022.
h.A copy of the employment contract of the nominee dated 30 October 2017 provided to the Tribunal and Department.
i.PAYG payment summaries of the nominee for the 2020 to 2022 financial years.
j.A copy of the employment contract of the nominee dated 9 March 2017 provided to the Tribunal.
k.Payslips of the nominee for the period from September to October 2022.
l.An ASIC record of registration for the business name 59 Fish.
Evidence presented at the second hearing
Mr Rahim gave evidence regarding the advertising for the position, the responses received from job applicants and the circumstances surrounding the nominee being issued with a certificate of completion of training as nominated manager of the Sumo Salad business at Sunshine Plaza.
Evidence presented after the second hearing
After the second hearing, the applicant produced to the Tribunal the following documents:
a.A submission from the representative dated 1 March 2023.
b.Evidence of the date of settlement of the purchase of the 59 Fish business.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1) of the Migration Act 1958 (Cth) (the Act). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed March 2023).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Retail Manager. On page 6 of the application, the nominee is identified as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ an identified person as a paid employee in the position of Retail Manager under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
As regs 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant has provided evidence from ASIC that it is registered and that its trading name 59 Fish is also registered. Evidence from the Australian Business Register establishes that the applicant’s ABN is active, and that the applicant is registered for GST. The applicant has provided financial statements and business activity statements up to the 2022 financial year together with taxation returns up to the 2021 financial year.
The applicant’s financial statements reveal that it recorded sales in the 2021 and 2022 financial years of $515,818 and $470,414 respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely as a supplier of takeaway and dine-in meals.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Mr Rahim gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The employment contract dated 9 March 2022 produced to the Tribunal provides that the position is permanent and full-time. The position description is Retail Manager. The contract provides that the nominee’s employment is for at least two years from the commencement date, which is not specified in the document. However, according to the Department’s policy, the reference to permanent employment is sufficient to satisfy the requirement for employment for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The salary payable to the nominee under the 2022 employment contract is $63,252.80 plus superannuation.
The applicant’s financial statements reveal that the applicant’s sales dropped from $515,818 in 2021 to $470,414 in 2022. Mr Rahim explained that the reduction in sales was a result of the applicant not trading for approximately two months after the sale of the Sumo Salad business at the end of January 2022. This evidence is supported by the business activity statements, which reveal a reduction in the sales of $83,520 in the quarter ending in March 2022, compared to the corresponding quarter in 2021. However, the applicant’s cost of sales reduced proportionately in 2022, so that the applicant actually recorded an increased trading profit of $36,578 in that year.
The applicant has recorded trading profits in the 2021 and 2022 financial years after having paid salaries to the nominee of $57,586 and $57,911 respectively in those years. Although the salary payable to the nominee under the recent employment contract is slightly higher than the salary that was previously paid by the applicant, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Retail Manager in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)

Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant does not have an Australian citizen or permanent resident performing equivalent work at the nominee’s workplace. The salary to be paid by the applicant to the nominee is $63,252.80 per annum. The applicant is entitled to leave as specified in the employment contract and in accordance with the Fair Work Act 2009 (Cth). The applicant is required to make superannuation payments on behalf of the nominee in accordance with the relevant legislation.
The applicant provided to the Tribunal evidence from the platform PayScale that the salary payable to a Retail Store Manager in Australia ranges between $48,000 and $72,000 per annum with an average of $55,430 per annum.
The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by the Queensland Chamber of Commerce and Industry, Toowoomba dated 29 November 2017, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meanings given in regs 1.13A and 1.13B.
There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)
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 and the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4558. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 59 Aerodrome Road, Maroochydore, Queensland 4558. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
In the application, the applicant stated that the address where the nominee was to be employed was Shop 275, Sunshine Plaza, 154-164 Horton Parade, Maroochydore. Mr Rahim stated at the hearing that the applicant’s business is now located at 59 Aerodrome Road, Maroochydore. In Harinsco Pty Ltd v MICMSMA [2021] FCCA 528, the Court held that a nominated position in relation to a regional nomination is fixed to the position nominated at the time of application. The Tribunal notes that the applicant’s former business was located in Maroochydore and that its current business is also located in Maroochydore. The Tribunal finds that in this matter, the nominated position was Retail Manager, and that the geographical location of the position was Maroochydore. The Tribunal finds that the relocation of the applicant’s business does not constitute a change in the nominated position. The Tribunal finds that the position is located at 59 Aerodrome Road, Maroochydore, Queensland 4558, which is in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control
At the first hearing, Mr Rahim described the tasks performed by the nominee and gave evidence as to his claim that there is a genuine need to employ the nominee to work in the position of Retail Manager. He stated that another company with which he is associated operates the business of Pizza Hut at Chancellor Park. He said that he was solely responsible for management of that business and that he was fully occupied in that management role, to the extent that he could not also manage the 59 Fish business.
Mr Rahim stated that there had been a manager in the 59 Fish business when the applicant purchased the business in September 2017. The applicant later produced evidence that settlement of the purchase of the business actually occurred on 4 October 2017. Mr Rahim said that the original manager resided in Noosa, which required her to drive for 45 minutes each way to attend at the business premises. He said that the former manager gave notice of her intention to leave the applicant’s employment almost immediately after the business was purchased, so that the nomination of the nominee in the role was to fill the vacancy in the existing position of Retail Manager.
Mr Rahim stated that, as well as managing the Pizza Hut business, he is required to spend a considerable amount of time assisting with the care of his son. He advised in his written statement of 27 September 2022 that his son has level 3 autism and requires therapy four times per week. Mr Rahim is required to take him to medical appointments while his wife looks after their younger child. The applicant produced evidence of the approval of a National Disability Insurance Scheme plan in respect of the elder child. Mr Rahim gave evidence at the hearings of his involvement in the implementation of the plan.
The Tribunal notes that the nominee has been employed in the position of Retail Manager, firstly in the Sumo Salad business and presently in the 59 Fish business, since October 2017. The Tribunal also has regard to the certificate of the RCB referred to in paragraph 41 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Retail Manager at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The position was advertised on the Gumtree site on 15 October 2017. In his statutory declaration of 19 October 2022, Mr Rahim provided a recruitment report. He said that three applications were received in response to the advertisement. One application was from the holder of a Subclass 457 visa who was therefore not an Australian citizen or Australian permanent resident. The Tribunal finds that that job application is not relevant to this requirement. A second application was received from a candidate whom Mr Rahim was unable to contact. The third application was received from a candidate who did not have the required qualifications or experience for the position.
The Tribunal was initially concerned whether the Gumtree advertisement was a genuine attempt by the applicant to determine whether the position could be filled by an Australian citizen or an Australian permanent resident living in the Maroochydore locality. The Tribunal’s concerns were based on the following factors:
a.Mr Rahim disclosed at the first hearing that the nominee is his brother. The Tribunal was concerned that the position of Retail Manager may have been offered to the nominee for that reason solely.
b.A certificate provided by Sumo Salad disclosed that the nominee had completed his management training on 11 October 2017, prior to the position being advertised.
c.The applicant provided to the Tribunal a statutory declaration made by the nominee on 27 September 2022 in which the nominee confirmed that he began employment with the applicant on 30 October 2017, only 15 days after the position had been advertised.
The Tribunal invited Mr Rahim to the second hearing to discuss this requirement further. At the second hearing, Mr Rahim described the circumstances under which the former manager of the Sumo Salad business had left the applicant’s employment. He said that the manager had given notice that she intended to leave her position almost immediately after the applicant had purchased the business. There were a number of reasons for her wishing to cease employment.
Mr Rahim also discussed why his brother had completed the management training with Sumo Salad. He said that he, as the new franchisee, had also undergone the training and that a second person could also be trained without further cost. He said that the nominee had completed the training so that he could help out with the business if required.
Mr Rahim also provided further details of his inability to contact the second applicant who had responded to the Gumtree advertisement. He also stated that the third applicant had no experience in retail or hospitality.
Although the Tribunal has entertained concerns regarding this requirement, the Tribunal accepts that the position was advertised and that no suitably qualified local applicant applied for it. The Tribunal also places weight on the certificate of the RCB referred to in paragraph 41 above.
Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulations 5.19(4)(h)(ii)(D) and (DA) – the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant is Retail Manager (General) which has the six‑digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 142111 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in the ANZSCO for that occupation include:
·     determining product mix, stock levels and service standards
·     formulating and implementing purchasing and marketing policies, and setting prices
·     promoting and advertising the establishment's goods and services
·     selling goods and services to customers and advising them on product use
·     maintaining records of stock levels and financial transactions
·     undertaking budgeting for the establishment
·     controlling selection, training and supervision of staff
·     ensuring compliance with occupational health and safety regulations.
The nominee’s responsibilities according to the Duties List dated 9 March 2022 include (substantially verbatim):
·     To do the rostering on a weekly basis, before the week commences.
·     To do the employee’s management, including their hiring and firing.
·     To run the shift and organise extra staff if needed.
·     To place the stock ordering and stock management.
·     To do the banking at the end of every business day without fail.
·     To do the daily checklist of the store maintenance on daily basis.
·     To ensure that adequate product preps are done, a according to daily sales forecast.
·     To do the stock-take on a weekly basis.
·     To do Facebook marketing and adapt to various marketing strategies to promote the goods, and to determine the product pricing according to market needs.
·     To ensure that costs of goods sold are within the proposed target and should always be under set budgeting.
·     To ensure that all staff abide by company policies.
·     To ensure that high standard of hygiene is maintained at all times.
·     To ensure that the right amount and quality of chemical is used on a daily basis.
·     To ensure that all personal protective equipment is worn by all staff.
·     Customer satisfaction is the key to the business and should always be taken care of.
·     To ensure compliance with Occupational Health & Safety rules and regulations, to be checked on a regular basis.
·     To maintain the injury logbook if needed.
·     To ensure that the first aid box is in place at all times.
·     Daily and weekly cleaning should be conducted.
·     To ensure that staff are trained whenever necessary.
·     To conduct staff meetings on a monthly basis.
The delegate was not satisfied that this requirement had been met. The delegate found that the nominee was not required to carry out four of the eight tasks listed in the ANZSCO at all and that he was required to carry out the remaining four tasks only to a minor degree.
The requirements of the nominated position have changed substantially since the date of the delegate’s decision. At that time, the applicant was operating the salad bar business under a franchise arrangement from Sumo Salad. Since March 2022, the applicant has operated the 59 Fish business which is independent of any franchise.
Mr Rahim gave evidence regarding the tasks performed by the nominee in the position. Dealing with some of the tasks specified in the classification, he stated as follows:
a.Determining product mix – Mr Rahim said that the nominee had personally been responsible for the introduction of new product lines including salads, rolls and wraps. He said that the nominee had an input into the overall product mix.
b.Purchasing and marketing policies – Mr Rahim said that he, as business owner, had the final say on purchasing policies. However, he said that the nominee had personal contact with sales representatives and suppliers and had authority to deal with them regarding the price and quality of products supplied to the business. He said that the nominee was present in the business, whereas he was only there occasionally. Mr Rahim said that the nominee was solely responsible for marketing policies.
c.Budgeting – Mr Rahim said that he set targets for the nominee to achieve in the business. He said that the nominee used his own method to meet these targets by controlling the cost of goods purchased and staffing costs.
d.Selection of staff – Mr Rahim said that since the applicant had purchased the 59 Fish business there had not been much turnaround of staff. However, he said that the nominee had recently advertised to fill a junior staff position and that the nominee would make the final decision on selection of the new staff member. He said that the nominee would be responsible for dismissal of any staff member if required as he (Mr Rahim) could not do it personally because he visited the business rarely.
Having regard to Mr Rahim’s limited involvement in the management of this business as a result of his other business interests and his need to assist in the care of his son, the Tribunal is satisfied that the nominee does perform the majority of the tasks of the nominated occupation.
Having regard to the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Retail Manager (General) specified by the Minister in the relevant instrument. According to the ANZSCO, the occupation is a Skill Level 2 occupation, requiring that the nominee holds an AQF Associate Degree, Advanced Diploma or Diploma. Evidence has been provided to the Tribunal that the nominee holds a Bachelor of Accounting degree. The Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 52 above, the Tribunal is satisfied that the business operated by the applicant is located at 59 Aerodrome Road, Maroochydore, Queensland 4558, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 41 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
Member

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