OM Mahalaxmii Foods Pty Ltd (Migration)

OM Mahalaxmii Foods Pty Ltd (Migration) [2023] AATA 3342 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  OM Mahalaxmii Foods Pty Ltd
REPRESENTATIVE:  Mr Tariq Ameer (MARN: 1807556)
CASE NUMBER:  1933096
HOME AFFAIRS REFERENCE(S):          BCC2019/4338673
MEMBER:Warren Stooke AM
DATE:6 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 6 September 2023 at 5:01pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Retail Manager – position associated with the nominated occupation is genuine – genuine need for the nominator to employ a paid employee – actively and lawfully operating a business in Australia – no less favourable terms and conditions of employment – lawfully operating business –– nominated tasks corresponds to the tasks of an occupation specified by the Minister – no adverse information known to Immigration – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 2.72, 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 on 31 October 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 30 August 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 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: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 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 that the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because of the fact that the company has had its Standard Business Sponsorship status cancelled and has been barred from sponsoring any more overseas sponsored employees on subclass 457 visas for the next 3 years. It was stated that the delegate of the Minister has found that the company has not been complying with immigration law. The delegate considered that the company did not meet the requirement of Regulation 5.19(4)(b).
The applicant appeared before the Tribunal on 19 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Haminshu Ramchandani, the nominee for the position of Retail Manager – ANZSCO Code: 1421111.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that the applicant had received and read a copy of the delegate’s decision, which was provided to the Tribunal with the application for review.
The applicant stated that he understood the 2017 findings by the Department’s Immigration Officer was based on a section of the company, at the time, where his brother was a director of the other company and was also a director of the applicant company in this case.
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 reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant provided evidence that Om Mahalaxmii Foods Pty Ltd was registered with ASIC on 1 July 2016 and assigned ABN 81 612 570 788.
The applicant advised that the other business operated by his brother has a different ABN to the business subject to the current application.
The applicant provided evidence that the business has obtained 20 multi licenses from Carl's Jr USA to open 20 licenced burger stores spread across Queensland. At present, the company is operating 10 stores, including a store in Rockhampton, which started trading in October 2019 and another 3 more stores are to be added to the group in the next year.
The applicant stated that the Head Office is located at Underwood, Brisbane and that the nominee is working in the Rockhampton Store as a Retail Manager.
The applicant stated that the Rockhampton Store has 18 to 20 employees, who are engaged under the Retail (General) Award 2010.
The applicant provided evidence that the position of Retail Manager – ANZSCO Code: 1421111 was advertised with Job Active from 10 July 2019 to 31 July 2019; and with JORA from 10 July 2019 to 31 August 2019, which attracted 9 applicants, including the nominee.
The applicant stated that the nominee was provided with a Fair Work Information Statement at the time of engagement, which is part of the information booklet that includes food safety and how to log-in and off.
The applicant provided the Department with evidence that the applicant signed a contract of employment with the nominee dated 1 September 2019 for a minimum period of 2 years from the date of the grant of a 187 Visa and the contract was signed by the applicant on 22 August 2019 and the nominee on 22 April 2023. The contract included a salary of $60,000, plus superannuation.
The applicant provided evidence of RSMS approval of the nomination by the Queensland Chamber of Commerce and Industry dated 28 August 2019 for the nominated occupation of Retail Manager – ANZSCO Code: 1421111 for the nominee, Mr Haminshu Ramchandani, on a salary of $60,000 plus superannuation. In this regard, superannuation is contributed to the Rest Fund.
The applicant provided the Department with an organisation chart that included the Rockhampton store, where the Store Manager reports to the Director in Head Office.
The applicant confirmed at hearing that the nominee undertakes the following tasks that are aligned with the tasks prescribed in ANZSCO Code 142111:
• Directs efficient and accurate preparation and sale of products to maximize guest satisfaction.
• Ensures preventive maintenance of restaurant facility and equipment is completed in accordance with Company standards.
• Motivates and directs team members to exceed customer expectations with fast and friendly service in clean surroundings.
• Effectively plan, organize and implement all operational routines and activities.
• Provides coaching and feedback to Team Members, Shift Coordinators and Assistant Managers.
• Assumes full responsibility for store profit and loss management by implementing marketing strategies and following cash control/security procedures.
• Maintains inventory, manages duty roster, and applies financial reporting analysis to enhance store results.
• Enforces compliance with council regulations, CJ Market Policy, employment laws, food safety, CJ Security.
• Policy, operations, and CJ policies and procedures relating to all store activities across shifts.
• Leads management team in recruiting, selecting, hiring and retaining effective team talent
• Available to work evenings, weekends and holidays
The applicant stated that the nominee has been working in the market since 2015 and shifted to Rockhampton in 2019 and had previously been working with a related company managed by Vishal Bansal.
The applicant stated that the position of Retail Manager will be permanent on a full-time basis for 2 years upon grant of the visa and will be longer if the nominee stays.
In response to a request from the Tribunal, at hearing, the applicant provided the following financial information relating to the business:

2021

2022

Total Income

$13,380,663

$14,809,315

Total Expenses

$13,361,449

$14,253,511

Profit

$19,214

$555,804

Wages

$6,475,728

$6,423,840

Superannuation

$531,934

$491,135

Witness Evidence - Mr Haminshu Ramchandani (Nominee)

The nominee was granted and Bridging Visa A on 10 November 2016 with work condition 8105.
The nominee stated that he currently has a Bridging Visa C that has work rights.
The nominee provided evidence that he holds the following qualifications:
a.Certificate IV (Commercial Cookery) Hospitality from the Holmes Institute from 2 June 2008 to 28 May 2010;
b.Diploma of Hospitality Management at the Holmes Institute from 2 June 2008 to 28 May 2010;
c.Advanced Diploma of Management from the American College awarded on 11 November 2011;
d.Diploma of Business Administration at the American College awarded 18 January 2013;
e.Graduate Certificate in Management (Learning) from 26 October 2015 to 2 October 2016
The nominee provided evidence that he is a graduate from the University of Maharashi Dayanand Saraswathi Ajmer with the award of a Bachelor of Science (2004) and the University of Bikaner with a Master of Science (2006).
The nominee provided evidence that he undertook a PTE English language test on 27 October 2017 with an overall score of 50.
Application requirements – reg 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 reg 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 reg 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 (Cth) (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: regs 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 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (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 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) 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.
The applicant lodged the application to nominate the nominee for the position of Retail Manager – ANZSCO Code: 142111 with the business on 30 August 2019 on Form 1395 (Internet). The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
The Tribunal is satisfied that there is no contemporary adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
Whilst, the applicant provided evidence that the brother of the applicant was a director of a business that was subject to the Department’s decision to impose a bar on sponsorship of 457 visas for a period of 3 years, the business concerned was subject to a different ABN and the three year bar has now expired. As such, the Tribunal is satisfied that the current applicant does not have adverse information relating to the operation of Om Mahalaxmii Foods Pty Ltd that was registered with ASIC on 1 July 2016 and assigned ABN 81 612 570 788.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 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.
The Tribunal is unaware of any such licencing / registration / membership requirements.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 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.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 1 September 2019 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the contract included a salary of $60,000 per annum, plus superannuation that is contributed to Rest.
The applicant stated that the contract of employment became operative on 1 September 2019 when the nominee was engaged as a full-time employee and was signed by the applicant on 22 August 2019 and the nominee on 22 April 2023.
Further, the Tribunal is satisfied that a Fair Work Information Statement was provided to the employee at the time of engagement.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(d) is met.
Training contribution debts – reg 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 training contribution charges and penalties for underpayments, has been paid in full.
The Tribunal is not aware of any debt payable by the nominator under s.140ZO.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant provided evidence that the nominating business, Om Mahalaxmii Foods Pty Ltd, was first registered with the ASIC on 1 July 2016; ABN 81 612 570 788 and the applicant who appeared before the Tribunal is a principal shareholder and director of the business.
Further, the Tribunal is satisfied that the business, based upon the information presently before the Tribunal, is actively operating lawfully and is directly operated by a principal shareholder.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(a) is met.
Labour hire businesses – reg 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.
The Tribunal finds that r.5.19(9)(b) is not relevant to the current nomination, as the business directly employs staff with Om Mahalaxmii Foods Pty Ltd to provide a service with its own employees..
Given the above findings, the Tribunal is satisfied that r.5.19(9)(b) is met.
Genuine need for employment – regs 5.19(9)(c) and (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 reg 5.19(9)(d) requires this need to be genuine.
The Tribunal is satisfied, based upon the evidence, that there is a genuine need for the position of Retail Manager to work under the direct control of the owner.

Further, the Tribunal notes that the specialist nature of the business operates as a stand-alone store in Rockhampton, in the food service industry. The Tribunal accepts the labour shortage in regional Queensland and the difficulty of businesses to secure skilled labour and that it may not have been possible for the position to be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent qualifications, skills and competencies. Evidence regarding the advertising of the position was provided.
Additionally, the Tribunal is satisfied that the scale of the business, after the payment of the nominee’s salary, will operate profitably, which has been demonstrated by the financial documentation presented to the Tribunal.
The Tribunal is satisfied, based upon the evidence of the applicant, that the position includes all of the tasks outlined in the position descriptor for the nominated position of a Retail Manager – ANZSCO: 142111.
The applicant confirmed in evidence that the nominated position includes the following tasks prescribed in ANZSCO Code: 142111 for the employed nominee:
• Directs efficient and accurate preparation and sale of products to maximize guest satisfaction.
• Ensures preventive maintenance of restaurant facility and equipment is completed in accordance with Company standards.
• Motivates and directs team members to exceed customer expectations with fast and friendly service in clean surroundings.
• Effectively plan, organize and implement all operational routines and activities.
• Provides coaching and feedback to Team Members, Shift Coordinators and Assistant Managers.
• Assumes full responsibility for store profit and loss management by implementing marketing strategies and following cash control/security procedures.
• Maintains inventory, manages duty roster, and applies financial reporting analysis to enhance store results.
• Enforces compliance with council regulations, CJ Market Policy, employment laws, food safety, CJ Security.
• Policy, operations, and CJ policies and procedures relating to all store activities across shifts.
• Leads management team in recruiting, selecting, hiring and retaining effective team talent
• Available to work evenings, weekends and holidays
Given the above findings, the Tribunal is satisfied that r.5.19(9)(c) and (d) are met.
Future employment – regs 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, reg 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, reg 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, reg 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: reg 1.03.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 1 September 2019 and that the nominee has a contract of not less than 2 years. In this regard, the evidence identified that the nominee has been paid a salary of $60,000 per annum and superannuation is contributed to Rest.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 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 (TSMIT) for Business visas. 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 ‘TSMIT’: 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 (TSMIT), 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).
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
No information to indicate less favourable employment conditions – reg 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.
The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, which was provided in evidence by the applicant. In this regard, the Tribunal is satisfied that the position was advertised and the nominee applied for the position of Retail Manager, which required the applicant to move to Rockhampton.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 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 that was made on 30 August 2019.
Regulation 5.19(10) requires that 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 made under r.5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument. In this case, the relevant instrument is IMMI 17/058.
The Tribunal is satisfied, based upon the evidence of the applicant, that the position includes all of the tasks outlined in the position descriptor for the nominated position of a Retail Manager – ANZSCO Code: 142111.
The applicant confirmed in evidence that the nominated position’s tasks include:
• Directs efficient and accurate preparation and sale of products to maximize guest satisfaction.
• Ensures preventive maintenance of restaurant facility and equipment is completed in accordance with Company standards.
• Motivates and directs team members to exceed customer expectations with fast and friendly service in clean surroundings.
• Effectively plan, organize and implement all operational routines and activities.
• Provides coaching and feedback to Team Members, Shift Coordinators and Assistant Managers.
• Assumes full responsibility for store profit and loss management by implementing marketing strategies and following cash control/security procedures.
• Maintains inventory, manages duty roster, and applies financial reporting analysis to enhance store results.
• Enforces compliance with council regulations, CJ Market Policy, employment laws, food safety, CJ Security.
• Policy, operations, and CJ policies and procedures relating to all store activities across shifts.
• Leads management team in recruiting, selecting, hiring and retaining effective team talent
• Available to work evenings, weekends and holidays
Given the above findings, the Tribunal is satisfied that r.5.19(10) is met. Accordingly, r.5.19(9)(j) is also 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.
Warren Stooke AM
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.

[2023] AATA 3342

6 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Standing

2021	2022
Total Income	$13,380,663	$14,809,315
Total Expenses	$13,361,449	$14,253,511
Profit	$19,214	$555,804
Wages	$6,475,728	$6,423,840
Superannuation	$531,934	$491,135