Perth Corporate Cleaners Pty. Ltd. (Migration)

Perth Corporate Cleaners Pty. Ltd. (Migration) [2024] AATA 2207 (18 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Perth Corporate Cleaners Pty. Ltd.
REPRESENTATIVE:  Mr Reza Aein (MARN: 0955595)
CASE NUMBER:  2304191
HOME AFFAIRS REFERENCE(S):          BCC2022/1055695
MEMBER:Warren Stooke AM
DATE:18 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 June 2024 at 3:13pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Contract Administrator – visa held by identified person at time of application – Bridging Visa – 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 on 10 March 2023 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 16 March 2022. 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 Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) and reg 5.19(5) of the Regulations because the nominee did not hold one of the visas specified in reg 5.19(5)(a)(i) at the time of the application.
The applicant appeared before the Tribunal on 6 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Krven Vicky Daby, the nominee for the occupation of Contract Administrator – ANZSCO Code: 511111.
The applicant was represented in relation to the review.
The applicant stated that he had received and read a copy of the visa decision from the Department, which was provided to the Tribunal with the application for review.
The applicant stated that he understood the visa application was refused because the 457 visa was claimed not to be effective because of a Bridging Visa.
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 TRT reg 5.19(5), 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 Perth Corporate Cleaners Pty Ltd was registered with ASIC on 30 May 2013 and assigned ABN: 46 163 943 173.
The applicant stated that he is the Managing Director of the business and oversees the total operation and that he commenced with the business in 2015.
The applicant explained that the business has more than 200 commercial contracts that includes cleaning; gardening and carpentry with minor maintenance and the business is now expanded to include operations in Darwin.
The applicant stated that the business has 15 employees on the payroll together with sub-contractors.
The applicant was granted company sponsorship of approval from 2 December 2020 to 2 December 2025 with assigned registration EGOA663U62.
The applicant provided evidence of an organisation chart with the owner, Kelvin Daby as the Managing Director; Mary Daby, as Secretary; the nominee, Krven Vicky Daby, as Contract Administrator, a Sub-contractor Supervisor, and Sub-contractor Cleaners and Gardeners.
The nominee was granted a 457 Visa on 19 October 2016 that ended upon the grant of a Bridging Visa A on 16 October 2020 with an application for a 482 Visa.
The applicant provided evidence of a Contract of Employment dated 28 February 2022 for the position of Contract Administrator - ANZSCO Code: 511111 on a full-time basis with a salary of $60,000 that was signed on 1 March 2022.
The applicant provided evidence that the nominee has undertaken an IELTS English language test on 26 June 2020 with an overall score of 5.0.
The applicant provided evidence that the position of Contract Administrator was advertised on JobActive on 25 September 2020; Indeed on 11 September 2020; Jora on 24 September 2020 and Seek on 24 September 2020 with the name of the organisation: Perth Corporate Cleaners Pty Ltd and a full job description based on full-time employment with a salary of $60,000 per annum. The applicant genuinely considered numerous applicants for the position, including the nominee, who had previously worked for the business on a part-time basis whilst holding a Student visa.
The applicant provided the Tribunal with financial information for the financial years 2018 to 2021, as follows:

2020

2021

2022

2023

Total Income

$521,136

$641,059

$1,015,032

$1,315,808

Total Expenses

$520,120

$607,323

$974,167

$1,372,616

Profit

$33,736

$1,015

$40,864

($56,807)

Wages

$168,520

$229,657

$372,753

($428,718)

Superannuation

-

-

$28,355

$49,446

Net Assets

($161,226)

(127,489)

($86,625)

($143,432)

The applicant explained that the loss identified in the financial year 2023, arose as a consequence of deferred receipts from invoices that extended beyond 60 days for individual customers, which will be included in the accounts for 2024.
On 14 October 2020, the applicant provided the Department with the following Genuine Temporary Entrant status concerning the nominee:
“This is to confirm that it is my intention to work in Australia temporarily to further my skills and experience. As an assurance that I am a genuine temporary entrant, I would like to present some details of my background and circumstances.
I first came to Australia as a student in 2015 with the goal to simply improve my English while broadening my experience by living in a different country. While I was studying English at the AICT Institute of Commerce, I learned about the RPL program and thought it may be worthwhile to have my Mauritian experience assessed. In this way I acquired an RPL Diploma in Management in 2016 which allowed me to be sponsored in a full-time position as a Contract and Sales Administrator at Perth Corporate Cleaners (I had been working there in a part-time role, on my student visa).
Although I had never previously worked in the cleaning industry, I found that my prior experience as a Sales Supervisor at Panagora Marketing (a packaged foods distribution company) served me well in this role, by building on my skills in sales contract negotiation. As the Contract and Sales Administrator at Perth Corporate Cleaners, I am responsible for the administration and negotiation of all sales contracts on behalf of the company. The position serves as the key consult between subcontractors, clients and other stakeholders.
The skills and experience I am gaining at Perth Corporate Cleaners therefore build on my prior work experience and serves to enhance my CV as a Contract Administrator. My intention is to take the option of continuing my employment for another 2 years in order to cement this experience, allowing me some additional time to increase my financial savings, and find a suitable role to return home to in Mauritius. This should not be seen as an attempt to stay in Australia indefinitely, but rather as an astute decision to take advantage of the opportunity offered by my employer.
After the additional two years, the knowledge and experience I would have gained in Australia, will broaden my employment options in Mauritius by raising me above my peers in the local industry. I intend to find a secure position to return home to, and ultimately use my skills and professional experience to potentially start my own business. The current pandemic has changed perceptions and behaviours around hygiene which I believe will have long-lasting effects and continue to bolster the cleaning industry globally, providing an opportunity for me to replicate the Australian commercial cleaning model I have experienced back home in Mauritius.
The major incentive to return to my home country is my family. Both my wife and I have parents and extended family members back in Mauritius and, both culturally and personally, consider it our responsibility to care for our parents in their old age. At home, it is not uncommon to live with extended family and before moving to Australia, both of us lived with our parents, and will most likely do the same when we return. My parents, and childhood friends all reside in Mauritius and I have maintained a close bond with them, communicating with them almost every day. Additionally, we would like our children to grow up within this extended family connected to their own culture in Mauritius.
I confirm that it is my genuine intention to stay in Australia temporarily for another 2 years as the visa allows before returning home to Mauritius. I have complied with all conditions attached to my present and previous visas and I have no intention or inclination to breach any potential new visa conditions, thereby risking any future visits to Australia or other overseas destinations.”
The applicant provided the Tribunal with a schedule of duties that included detailed information pertaining to the position proposed for Perth Corporate Cleaners Pty Ltd, as follows:
·Manage and resolve client issues or complaints
·Report all client issues or complaints to the Director(s)
·Site inspections as per weekly schedule provided by management
·Provide written inspection reports on each site visit
·Negotiate, draft, interpret and finalizing terms and conditions of agreements and contracts and send the documents to all parties
·Review proposed agreements prior to acceptance
·Monitor agreements, verifying the integrity of paperwork, services and processes
·Manage all paperwork relating to service schedule, service agreements, contract administration and contract monitoring
·Record and maintain accurate detailed contract records on all sales services
·Communicating changes in services and engagement policy, progress and outcome of all services provided to both internal and external stakeholders.
·Assist engaged and prospective clients with queries, complaints and acknowledge feedback regarding services provided
·Coordinate and manage prospective clients, covering the scope of appointment setting, assisting in quotation, preparing reports and other support duties
·Ensure all stakeholder commitments pertaining to the business are met regularly
·Conduct all training and inductions in all aspects of cleaning and floor maintenance to subcontractors
·Ensuring a smooth transition and limiting ongoing issues with subcontractor changeover management
·Updating subcontractor details on company database
·Regular communication with subcontractors to instil business expectations
·Regular communication and once a fortnight meeting with director to discuss operational progress updates and apply any strategies to improve service to customers
·Ensure all sub-contractors are in correct attire and following the given procedures
·Able to cope with emergency call out that involve attending sites at night, during the day or over the weekends and assist with cleaning or strip and seal work to cover/help the subcontractor
At hearing, the applicant provided the Tribunal with the following confirmation of the duties pertaining to ANZSCO Code: 511111 for the nominated position of Contract Administrator:
a.developing, reviewing and negotiating variations to contracts, programs, projects and services;
b.responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected;
c.managing paperwork associated with contracts, programs, projects and services provided;
d.working with owners and others to ensure that goals are met;
e.advising senior management on matters requiring attention and implementing their decisions;
f.overseeing work by contractors and reporting on variations to work orders for childcare centres, mining operations and offices, which will differ in their requirements;
g.preparing and reviewing submissions and reports concerning the organisation's activities;
h.collecting and analysing data associated with projects undertaken, and reporting on project outcomes
i.reviewing and arranging new office accommodation
On 14 November 2023, the Representative for the applicant provided the Tribunal with a detailed submission that addressed the pertinent criteria relevant to reg 5.19, as follows:
“Thank you for your letter of 06/02/2023 inviting our client to comment on information pertaining to its application for a RSMS Nomination (Temporary Residence Transition) (subclass 187) visa.
We note that you have now focused your assessment of the application on the provisions of Subregulations 5.19(5)(e) and 5.19(6) to wit:
Temporary Residence Transition stream—additional requirements for approval
(5) If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
xxx
(e) during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i) a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii) a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream;
(iii) for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream;
xxx
Minister may vary certain Temporary Residence Transition stream requirements
(6) The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
In relation to these, the pertinent provisions of Migration (IMMI 18/052: Specified Persons and Periods of Time for Regulation 5.19) Instrument 2018 state:
6 Persons specified for subparagraph 5.19(5)(a)(iii) of the Regulations
(1) This section is made for the purposes of subparagraph 5.19(5)(a)(iii) of the Regulations.
(2) A person is specified for the purposes of that subparagraph if, on 18 April 2017, the person:
(a) held a Subclass 457 (Temporary Work (Skilled)) visa; or
(b) was an applicant for a Subclass 457 (Temporary Work (Skilled)) visa that was subsequently granted.
7 Different periods of time for paragraphs 5.19(5)(e), (f) and (g) of the Regulations
(1) This section:
(a) is made for the purposes of subregulation 5.19(6) of the Regulations; and
(b) determines different periods of time for the purposes of paragraphs 5.19(5)(e), (f) and (g) of the Regulations for specified persons.
(2) Paragraphs 5.19(5)(e), (f) and (g) of the Regulations apply in relation to a specified person as if:
(a) references in those paragraphs to periods of 4 years were references to periods of 3 years; and
(b) references in those paragraphs to total periods of at least 3 years were references to total periods of at least 2 years.
(3) This section has effect, in relation to paragraphs 5.19(5)(f) and (g) of the Regulations, subject to sections 7A and 7B of this instrument.
We agree with your consideration that in this application, the 4-year period mentioned under Subregulation 5(e) should instead be considered as a 3-year period by virtue of Migration (IMMI 18/052: Specified Persons and Periods of Time for Regulation 5.19) Instrument 2018. Thus, the applicant should be assessed based on whether he held the necessary relevant visa for 2 years in the last 3 years.
We also agree that the point of reckoning in computing the relevant 3-year period from the date of the filing of the application would be from 16 March 2019 up to 16 March 2022 as the latter is the date of lodgment of the application. The nominee is claiming the periods from 16 March 2019 up to 16 March 2020 AND 16 March 2020 up to 16 March 2021 as the relevant periods when he held the subclass 457 visa.
We, however, disagree with your finding that:
“At the time of application, the identified person did not hold one of more subclass 457 or 482 visa for a total period of at least two years during the period of three years immediately before the nomination application was made. “
We humbly submit that the Nominee was employed full-time under a subclass 457 visa within the relevant period. As a matter of fact, the applicant has been employed under a subclass 457 visa from the year 2019 and has been on a Bridging A visa up to the present based on a subsequent application for a subclass 482 visa that has not been finally determined. This can be gleaned from the following illustrations:
a. On 19 October 2016, the Nominee was granted a subclass 457 Visa (Visa Grant Number: 0059569003207) to work as a Contract Administrator of the herein applicant, Perth Corporate Cleaners Pty Ltd. The subclass 457 visa ceased on 19 October 2020;
b. On 16 October 2020, the Nominee applied for a subclass 482 visa. An ensuing Bridging A Visa (subclass 010) was issued to the Nominee with a Grant Number 2009584096302.
c. On 01 July 2021, the application by the herein applicant to nominate the Nominee as the company’s Contract Administrator was refused by the Department of Home Affairs.
d. On 25 August 2021, the subclass 482 Visa application of the Nominee was consequently refused by the Department of Home Affairs;
e. On 16 July 2021, the herein applicant applied to lodge an Appeal with the Administrative Appeals Tribunal to dispute the findings and conclusions of the delegate. The statutory time limit to lodge the application to appeal was met and the reference number provided by the AAT on this appeal was 2109103;
f. On 14 September 2021, for his part, the Nominee also lodged an Appeal with the Administrative Appeals Tribunal to dispute the findings and conclusions of the delegate. The statutory time limit to lodge the application to appeal was met and the reference number provided by the AAT on this appeal was 2112339.
The Rules on Schedule 2 provide that:
010.5 When visa is in effect
010.511
(1) In the case of a visa granted to a non-citizen who has applied for a substantive visa — bridging visa:
(a) coming into effect:
(i) on grant; or
(ii) when the substantive visa (if any) held by the holder ceases; and
(b) permitting the holder to remain in Australia until:
(i) if the Minister's decision in respect of the substantive visa application is to grant a visa — the grant of the visa; or
(ii) if the Minister's decision in respect of that application is to refuse to grant a visa — 35 days after the Minister makes the decision; or
(iia) if the substantive visa application is refused and the Tribunal decides that the holder’s application for merits review of that refusal was not made in accordance with the law governing the making of applications to the Tribunal — 35 days after the Tribunal makes the decision; or
(iii) if the substantive visa application is refused and the Tribunal makes a decision on the holder’s application for merits review of that refusal (other than a decision to remit the application to the Minister for reconsideration) — 35 days after the Tribunal makes the decision; or
(iv) the grant of another bridging visa to the holder in respect of the same substantive visa application; or
(v) if the holder withdraws his or her application for a substantive visa or an application to the Tribunal — 35 days after that withdrawal; or
(vi) if the substantive visa (if any) held by the holder is cancelled — that cancellation; or
(vii) if the Minister decides that the substantive visa application is invalid—35 days after the Minister makes the decision; or
(viii) if the Tribunal remits the substantive visa application to the Minister for reconsideration—the day worked out in accordance with whichever subparagraph of this paragraph applies in relation to the reconsideration.
Further, the Schedule 2 provisions for subclass 010 include:
xxx
010.211(2) :
(2) An applicant meets the requirements of this subclause if:
(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b) that application has not been finally determined; and
(c) he or she held a substantive visa at the time that application was made;
xxx
010.513
In the case of a visa granted to a non-citizen on the basis of judicial review of a decision — bridging visa:
(a) coming into effect:
(i) on grant; or
(ii) when the substantive visa (if any) held by the holder ceases; and
(b) permitting the holder to remain in Australia until:
(i) subject to paragraph (c), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or
(ii) the grant of another bridging visa to the holder in respect of the same application for judicial review; or
(iii) if the holder withdraws his or her application for judicial review — 28 days after that withdrawal; or
(iv) if the substantive visa (if any) held by the holder is cancelled — that cancellation; and
(c) if a court remits a matter to which the judicial review proceedings relate to the Tribunal, or to the Minister, for reconsideration — permitting the holder to remain in Australia in accordance with the relevant provision of paragraph 010.511(1)(b).
Under Section 73 of the Migration Act, it states:
Section 73 Bridging visas
If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.
Under the PAM Guidelines, it is further explained that:
Purpose of the Bridging A visa
The purpose of a Class WA, subclass 010 Bridging A visa (referred to as 'BVA' in this instruction) is to provide lawful status in Australia to a non-citizen either:
(a) during the processing of their associated substantive visa application* until it is finally determined, including any merits review by the Administrative Appeals Tribunal (AAT) (Note: The associated substantive visa that the person has applied for must be of a kind that can be granted to the person while they are in Australia.)
or
(b) during judicial review proceedings relating to their associated substantive visa application until the proceedings are completed.
The above two events are separate. The visa period of a BVA granted in respect of (a) does not cover (b). A separate BVA application must be made for (b).
We also would like to invite your attention to the provisions in Reg 5.19 (5)(iii) and (5)(v) which states:
Reg 5.19 Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Temporary Residence Transition stream—additional requirements for approval
(5) If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a) at the time the application is made, the identified person holds:
(i) a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii) a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream; or
(iii) for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(iv) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
As mentioned above in Migration (IMMI 18/052: Specified Persons and Periods of Time for Regulation 5.19) Instrument 2018:
6 Persons specified for subparagraph 5.19(5)(a)(iii) of the Regulations
(1) This section is made for the purposes of subparagraph 5.19(5)(a)(iii) of the Regulations.
(2) A person is specified for the purposes of that subparagraph if, on 18 April 2017, the person:
(a) held a Subclass 457 (Temporary Work (Skilled)) visa; or
(b) was an applicant for a Subclass 457 (Temporary Work (Skilled)) visa that was subsequently granted.
Based on the above provisions and explanations extracted from the Regulations, it is evident that the period when the Nominee held his Bridging A Visa, by virtue of his subclass 482 visa being considered for final determination, can be counted as forming part of the period when he continuously held/holds a subclass 457 visa. This would clearly demonstrate that the Nominee is meeting the minimum requirements set out in the Regulations for him to be able to be Nominated by the Sponsor into the business.
With the above premises, we are requesting your Office to consider as a whole, the application as meeting the criteria set out in the Regulations in order for the applicant to nominate the Nominee as a Contract Administrator of the Company.
We trust these would meet the requirements. If you need further information, please do not hesitate to contact us.”

The Representative provided the Tribunal with further submissions on 14 November 2023 with attendant documentation in support of the application.
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.
The applicant lodged the most recent application to nominate the nominee for the position of Contract Administrator – ANZSCO Code: 511111 with the business on 16 March 2022 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. 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 to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control, which was confirmed at hearing. The applicant advised that the nominee will perform the duties of a Contract Administrator, as identified in ANZSCO Code: 511111 and confirmed in evidence, at hearing.
Further, the Tribunal is satisfied that the business, based upon the evidence submitted, is operating profitably after meeting all expenses, including wages and superannuation. In this regard, the Tribunal accepts that the registered business will employ the nominee on a full-time basis for a period of at least 2 years from the grant of the 187 visa and has demonstrated that it is able to meet its employment obligations for the next two years, from the grant of a visa, as has been evidenced historically.
The Tribunal accepts that the business can meet its financial obligations and employ the nominee in the position of Contract Administrator - ANZSCO Code: 511111 for a period of 2 years.
The Tribunal accepts that the business is a substantive operator in the commercial cleaning business sector and has a genuine need for the position of Contract Administrator - ANZSCO Code: 511111 that was first advertised on Indeed; Jora; JobActive and Seek from on 11 September 2020 with a salary of $60,000 for full-time employment.
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 adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
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 satisfied that the business Perth Corporate Cleaners Pty Ltd is a registered business with ASIC from 30 May 2013 with ABN 46 163 943 173.
Given the above findings, the Tribunal is satisfied that reg 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 28 February 2022 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 applicant stated that the nominee was provided with a Fair Work Information Statement at the time of employment by the business’s accountant.
The financial accounts identify that the applicant has met superannuation contributions for all employees in the financial years since the application was made and stated in evidence that he entered an arrangement with the ATO to rectify contributions required for 2020 and 2021.
Given the above findings, the Tribunal is satisfied that reg 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 notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet training Benchmark A or training Benchmark B since the current standard business sponsorship approval post 12 August 2018.
As set out in the paragraph above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore, the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a Subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.
The Tribunal notes that reg 5,19(5) includes the following criteria:
Temporary Residence Transition stream--additional requirements for approval
(5)  If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)  at the time the application is made, the identified person holds:
(i)  a Subclass 457 (Temporary Work (Skilled)) visa; or
(ii)  a Subclass 482 (Temporary Skill Shortage) visa; or
(iii)  if the last substantive visa held by the identified person was a visa mentioned in subparagraph   (i) or (ii)--a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph   (i) or (ii), a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
The Tribunal is satisfied that the nominee held a 457 visa from 19 October 2016, until the grant of a Bridging Visa on 16 October 2020, that was associated with an application for a 482 visa. As such, the Tribunal is satisfied that the applicant has met the provisions of reg 5.19(5)(a)(iii).
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Contract Administrator – ANZSCO Code: 511111.
Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).
Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument, at the time of application, specifying the occupation in this instance was LIN 19/047 of the Register of Business Instruments.
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
The Tribunal is satisfied that LIN 19/047: Specification of Occupations—Subclass 187 Visa Instrument 2019 at Item 428, includes the nominated occupation of Contract Administrator – ANZSCO Code: 511111.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:
·a Subclass 457 visa in the Standard Business Sponsorship stream, or
·a Subclass 482 visa in the Medium-term stream, or
·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.
Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.
In this case, the nomination application was made on 16 March 2022. The relevant instrument is LIN 19/047 in the Register of Business Instruments. Having regard to the terms of that instrument, the Tribunal finds that it is applicable.
The Tribunal is satisfied that the nominee has been engaged as a Contract Administrator for more than 6 years since the grant of a 457 visa on 16 October 2016 and a Bridging Visa from 16 October 2020, when the applicant applied for a 482 visa.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) has been met.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
The Tribunal is satisfied that the business, Perth Corporate Cleaners Pty Ltd, is a registered business with ASIC from 30 May 2013 with ABN 46 163 943 173.
The Tribunal is satisfied that Perth Corporate Cleaners Pty Ltd is an approved standard business sponsor with approval having been granted from 2 December 2020 to 2 December 2025
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) 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(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/047 of the Register of Business Instruments): reg 5.19(7).
The Tribunal is satisfied from the submitted documentation and the evidence provided at hearing that the position of Contract Administrator is genuine and the nominee is performing the duties outlined in ANZSCO Code: 511111
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN: 19/049 of the Register of Business Instruments): reg 5.19(7).
Secondly, reg 5.19(5)(m) 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(5)(n) 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 Tribunal is satisfied that the applicant will be employed full-time in the position of Contract Administrator – ANZSCO Code: 511111 for a period of more than 2 years and the terms and conditions of the nominee’s employment will not exclude the possibility of extending the period of employment beyond this period.

The Tribunal is satisfied that the nominee will be paid an annual market salary rate for the occupation, and that the nominator’s business has the capacity to employ the nominee for at least 2 years and pay the nominee, at this rate.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 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. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 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: reg 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: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 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: regs 2.72(15)(d) and 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 reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 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: regs 2.72(15)(f) and 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: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.
For these reasons the requirements of reg 2.72(15)(c); reg 2.72(15)(d); reg 2.72(15)(e); reg 2.72(15)(f) and reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
Regulation 5.19(5)(p) 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 there is no known information available to the Tribunal that would apply to the identified person that would be 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.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
The Tribunal is satisfied that there is a genuine need for the identified person (nominee) to be employed in the position under the nominator’s direct control; that employment is on a full-time basis for at least 2 years; that the identified person’s terms and conditions do not expressly exclude the possibility of extending the period of employment beyond a period of 5 years; and that the nominator’s business has the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate based on the financial information furnished to the Tribunal.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is 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.
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:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(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.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
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.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)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;
(n)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;
(o)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;
(p)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;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2024] AATA 2207

18 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Appeal

Procedural Fairness

Jurisdiction

Remedies

2020	2021	2022	2023
Total Income	$521,136	$641,059	$1,015,032	$1,315,808
Total Expenses	$520,120	$607,323	$974,167	$1,372,616
Profit	$33,736	$1,015	$40,864	($56,807)
Wages	$168,520	$229,657	$372,753	($428,718)
Superannuation	-	-	$28,355	$49,446
Net Assets	($161,226)	(127,489)	($86,625)	($143,432)