Quality Commercial Cleaning Pty Ltd (Migration)

Quality Commercial Cleaning Pty Ltd (Migration) [2021] AATA 1070 (22 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Quality Commercial Cleaning Pty Ltd
CASE NUMBER:  1812666
HOME AFFAIRS REFERENCE(S):          BCC2018/745101
MEMBER:De-Anne Kelly
DATE:22 March 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 22 March 2021 at 3:47pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – no recruitment summary at time of application – position cannot be filled by an Australian citizen or permanent resident –decision under review affirmed
LEGISLATION
Migration Act 1958, s 359
Migration Regulations 1994, r 5.19
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 18 April 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 14 February 2018. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) and r.5.19(4)(h)(ii)(F) of the Regulations because the application did not identify a need for the position and no advice from a regional certifying body was provided.
The applicant appeared before the Tribunal on 9 December 2020 to give evidence and present arguments. This was a combined hearing of five employer nomination refusal reviews and the five related visa application refusal reviews as below:

Employer nomination Refusal review Visa application refusal review

1812655 1816415

1812666 1816620

1812073 1816377

1812068 1814041

1812686 1816374

The applicant was represented initially in relation to the review by its lapsed registered migration agent Mr Marc Ribber (MARN: 1067892) and later by Mr Oszkar Denes (MARN: 1789637) of Springfield Lakes Qld 4300.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The director, Mr Eduardo Abreu, was unable to attend the hearing and the company was represented by Mr Ricky Palmer, a senior executive who joined the company in 2019. He advised that the company commenced trading in 2007 and in 2020 they booked revenue of close to $7 million. Mr Palmer contributed to this growth and he previously worked for major companies such as Spotless. The aim was to join the business and raise the revenue to $20 million within a five-year time frame.
They have 90 employees and sub-contractors across Queensland and South Australia. The company is very professionally run with quality accredited management systems and environmental management systems. They are becoming a player in the industry in terms of competing against the majors and are advancing in terms of their customer retention strategies and growth strategies. Mr Palmer believes in a strong market post COVID-19. It is a dynamic business in a growth phase.
The tax returns for the years 2018 to 2020 corroborate Mr Palmer’s evidence that the company is growing strongly and returning sound profits:

Tax return           2,020           2,019         2,018

Income     6,909,013      6,684,124     5,633,627

Sub-contractor       3,827,507

Employee base     1,290,608      3,675,189      763,205

Wages          10,074        26,116

Expenses     6,514,344      6,321,773     5,720,114

Profit /Loss        394,669        363,783        (86,487)

On 14 February 2018 the applicant lodged a Regional Sponsored Migration Scheme – visa Subclass 187 employer nomination in the Direct Entry stream for the position of Secretary (General) on $52,500 per annum located at Water Street, Toowoomba QLD 4350 in favour of Ms Sarah Caiafa Cesar.
Documents including the following were provided with the original application:
1)Regional certifying body advice including Form 1404 dated 25 September 2018 with advice: ‘Well advertised including recruitment agency’:
Efforts of recruitment: Jobsearch listing dated 140218 + 250718 - 150818 + Best Employment 020818 - 150818 > 34 applicants. No applicant was able to positively answer yes to all 5 questions re quals/experience.
RCB knowledge of local area: As usual difficulty in filling office positions depends on the qualifications and experience required. Here there is a mix of secretarial duties+ ability to prepare complex material+ operation of Sassu software - not the usual Quickbooks or MYOB most would know. For these reasons + dept of advertising >> ACCEPT.”
2)Organisation chart.
3)Acknowledgement of nomination application dated 14 February 2018.
4)Online employer nomination dated 14 February 2018 and TRN: EGOHAKFB11.
5)Clerks—Private Sector Award 2010.
6)ABN lookup.
7)Current and historical company extract.
8)Selection of advertisements for secretaries in other firms dated 2018.
9)‘Sarah – Job Description Template’ for position of Secretary with Adobe Sign History showing created by RMA on 13 February 2018 and signed by the director on 13 February 2018.
10)Advertisement on jobactive dated 14 February 2018 for the position and applicant.
11)Payscale market salary analysis for secretary.
12)Financial statements for FY 2017.
13)ASIC registration.
Documents including the following were provided with the review application:
14)Notice of Employer nomination refusal including Notice of Decision dated 18 April 2018.
15)Letter from registered migration agent ‘Complaint of apparently Unlawful Refusal of a 187 nomination’, dated 17 August 2018.
16)Response from Department of Home Affairs dated 20 August 2018.
17)‘Sarah Caiafa – Job Template – Secretary’ with Adobe Sign Document History showing director signed the document on 13 February 2018.
18)My candidates report for jobactive for secretary showing 34 candidates with earliest received 26 July 2018 and most recent received on 16 August 2018 with advice advertisement updated on 2 August 2018. Advertisement for secretary on jobactive showing placement 26 July 2018. All candidates are listed as ‘Unsuccessful Candidate’.
19)Market salary analysis for secretary dated 2018.
20)Selection of advertisements for secretary for other employers.
21)Complaint to the Commonwealth Ombudsman regarding refusal of Subclass 187 nomination by registered migration agent dated 20 August 2018.
22)‘Position Contribution Statement – Secretary – Sarah Caiafa Cesar’ dated 21 August 2018 with Adobe Sign Documents History signed by the director on 21 August 2018 stating that:
The position was advertised for 21 days as described below. 34 applications were received during the advertisement period.
Jobsearch.gov.au and au.jora.com: from 25 July 2018 to 15 August 2018
BEST Employment Limited: From 02 August 2018 to 15 August 2018.
The document goes on to state that the candidates were asked to answer 5 qualifying questions and only those who answered yes to all questions were shortlisted; zero candidates answered yes to all five questions.
23)Employment contract made on 1 March 2018 and signed by both the director and nominee.
24)Financial statements FY 2018.
25)Support letter from the accountant dated 1 September 2018.
26)Letter from the registered migration agent dated 31 August 2018 regarding complaint about Department handling of the nomination decision and refers to the decision-maker not having to follow the regional certifying body advice including Form 1404 advice and the resumes and advertisements for candidates being available. In support of r.5.19(4)(h)(ii)(C) the registered migration agent states that more Australians are emigrating from Australia and there is a skills shortage. He states that LMT Labour Market Testing was undertaken.
27)‘Sarah Caiafa – AAT MR6 Nomination’ with Adobe Sign History showing document created on 14 August 2018 and signed by the director on 14 August 2018.
28)Organisation chart.
29)Certificate of currency dated 2018.
30)ASIC registration.
31)Company tax returns for FY 2017, FY 2018, FY 2019 and FY 2020 and financial statements for the same years.
32)Bank statements 2017 to 2018.
33)Extract from applicant website.
34)Invitation from the Tribunal dated 9 October 2020 to provide information including:
the need to employ the nominee in the nominated position and why the position
cannot be filled by an Australian citizen or permanent resident living in the
same local area.
35)BAS 2019, 2020 and 2021.
36)Fair work ombudsman salary analysis.
37)Same advertisements as provided previously.
38)Outline of submissions by registered migration agent stating:
5.19(4)(h)(ii)(C) – Position cannot be filled by an Australia citizen or an Australian permanent resident
The RCB advise states that the certifying body was satisfied that the position could not be filled by an Australian citizen or permanent resident.
In addition, the material submitted to the Tribunal contains evidence showing the nominators advertising efforts, and the outcome.
39)Excel spreadsheet apparently showing sales income from cleaning contracts.
Documents including the following were provided following the hearing:
40)Supplementary submission in respect of cases: 1812068, 1812655, 1812666, 1812686 and 1812073, which addresses job descriptions for some of the positions; leases for the regional locations; some nominees working remotely and the lack of advertisements at the time the nominees were employed.
41)Email correspondence between some of the nominees, suppliers and clients.
42)Lease for the South Australian office.
43)Lease for Toowoomba office commencing 1 September 2018.
Adjournments and extensions of time
The applicant was invited to a hearing on 8 December 2020 but requested a postponement which was granted to 9 December 2020.
During the hearing a brief adjournment was requested and granted for 10 minutes.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant under s.359AA of the Act that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if they requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument; the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
Regulation r.5.19(4)(h)(ii)(C)
The applicant can choose the meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii) and has chosen to meet the latter.
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The following documents relate to the chronology of the advertisements and engagement process. It is further noted that the documents carry the name of the nominee as indicated:
1)Regional certifying body advice including Form 1404 dated 25 September 2018 with advice ‘Well advertised including recruitment agency’:
Efforts of recruitment: Jobsearch listing dated 140218 + 250718 - 150818 + Best Employment 020818 - 150818 > 34 applicants. No applicant was able to positively answer yes to all 5 questions re quals/experience.
9) ‘Sarah – Job Description Template – Secretary (General) History’ with Adobe Sign History showing created by RMA on 13 February 2018 and signed by the director on 13 February 2018.
10) Advertisement on jobactive dated 14 February 2018 for the position and applicant.
17) ‘Sarah Caiafa – Job Template – Secretary’ with Adobe Sign Document History showing director signed the document on 13 February 2018.
18) My candidates report for jobactive for secretary showing 34 candidates with earliest received 26 July 2018 and most recent received on 16 August 2018 with advice advertisement updated on 2 August 2018. Advertisement for secretary on jobactive showing placement 26 July 2018.
22) ‘Position Contribution Statement – Secretary – Sarah Caiafa Cesar’ dated 21 August 2018 with Adobe Sign Documents History signed by the director on 21 August 2018 stating that:
The position was advertised for 21 days as described below. 34 applications were received during the advertisement period.
Jobsearch.gov.au and au.jora.com: from 25 July 2018 to 15 August 2018
BEST Employment Limited: From 02 August 2018 to 15 August 2018
23) Employment contract made on 1 March 2018 and signed by both the director and nominee.
26) Letter from the registered migration agent dated 31 August 2018 regarding complaint about Department handling of the nomination decision and refers to the decision-maker not having to follow the regional certifying body advice including Form 1404 advice and the resumes and advertisements for candidates being available:
5.19 (4) (h) (ii) (C) – Satisfied
(C) the position cannot be filled by an Australian citizen or an Australian
permanent resident who is living in the same local area as that place;
Skills shortage affects Australia for decades. Not only as consequence of economic growth but because of emigration of skilled Australians to other countries. The Department of Home Affair reports (source: homeaffairs.gov.au):
In 2012-13, 43 423 Australia-born people departed permanently. This figure includes the Australia-born children of former settlers.
[4707413] Complaint Nomination Refusal
Overwhelmingly, the Australia-born are emigrating to the United Kingdom, the United States or to New Zealand. In 2012-13, 44.0 per cent of Australian-born emigrants went to one of these three countries. The next most popular destinations were Singapore (10.0 per cent), Hong Kong SAR (5.4 per cent) and the United Arab Emirates (4.6 per cent).
Over the post-war period, for those born overseas, high (or low) emigration levels have been associated with high (or low) numbers of permanent arrivals two years earlier. In other words, a small but significant number of people migrating to Australia chose to leave within two years.
In recent years, more Australian-born residents have been emigrating. This trend is likely to continue as a result of the increasing internationalisation of labour markets and global demand for skilled workers.
Skills shortages in a particular industry can mean job opportunities. Shortages exist because an employer can’t fill vacancies. This may be because the job requires specialist skills, the location is difficult or the industry is booming (source: skills shortage in Australia has long been a topic in economic and political circles. It was even part of the Hawke government’s agenda back in 1987. In the past few years, much of the debate has centred on the need for migrant workers to come to Australia to fill the gap.
Another challenge Australian employers are facing is the lack of qualifications and skills experienced by the available workforce. The MRT has acknowledged this issue on 1401456 [2014] MRTA 2394 (15 October 2014): From the evidence given at the hearing, the Tribunal accepts that a number of potential applicants were attracted to apply including local residents, who, for a range of reasons as set out in the letter of 28 February 2013, were not suitable. This included such factors as inadequate industry experience, or they did not front up to the scheduled interview (in about one third of the interviews arranged) or otherwise because of lack of skill or knowledge, or quality of personal presentation, according to the applicant. The Tribunal has also had regard to the letter of Hospitality Employment Training Specialists dated 23 August 2012, which attests to the difficulties of attracting and retaining persons in the cooking trades (such as Cook) in South Australia.
The nominator tested the labour market by posting job ads in various Medias and could not locate a suitable local candidate. Nomination and hiring of an overseas person is an attractive option, especially considering the REN program provides for retention of this staff for at least two years.
27) ‘Sarah Caiafa – AAT MR6 Nomination’ with Adobe Sign History showing document created on 14 August 2018 and signed by the director on 14 August 2018.
39) Supplementary submission in respect of cases: 1812068, 1812655, 1812666, 1812686 and 1812073, which addresses job descriptions for some of the positions; leases for the regional locations; some nominees working remotely and the lack of advertisements at the time the nominees were employed.

A chronology of events is shown below to aid an examination of the evidence:

13 February 2018 9) ‘Sarah – Job Description Template – Secretary (General) History’ with Adobe Sign History showing created by RMA on 13 February 2018 and signed by the director on 13 February 2018.

13 February 2018 16) ‘Sarah Caiafa – Job Advertisement Template – Secretary’ with Adobe Sign Document History showing director signed the document on 13 February 2018.

14 February 2018 10) Advertisement on jobactive dated 14 February 2018 for the position and applicant.

14 February 2018 3) Acknowledgement of nomination application dated 14 February 2018.

1 March 2018 22) Employment contract with statement ‘made on 1 March 2018’ and signed by both the director and nominee.

26 July 2018 17) My candidates report for jobactive for Secretary showing 34 candidates with earliest received 26 July 2018 and most recent received on 16 August 2018 with advice advertisement updated on 2 August 2018. Advertisement for secretary on jobactive showing placement 26 July 2018. All candidates are listed as ‘Unsuccessful Candidate’.

14 August 2018 26) ‘Sarah Caiafa – AAT MR6 Nomination’ with Adobe Sign History showing document created on 14 August 2018 and signed by the director on 14 August 2018.

21 August 2018 21) ‘Position Contribution Statement – Secretary – Sarah Caiafa Cesar’ dated 21 August 2018 with Adobe Sign Documents History signed by the director on 21 August 2018 stating that:
‘The position was advertised for 21 days as described below. 34 applications were received during the advertisement period. Jobsearch.gov.au and au.jora.com: from 25 July 2018 to 15 August 2018. BEST Employment Limited: From 02 August 2018 to 15 August 2018.’

25 September 2018 Regional certifying body advice including Form 1404 dated 25 September 2018 with advice ‘Well advertised including recruitment agency’.

The Tribunal has examined the employment agreement very carefully and notes that the signatures of the director and nominee do not have a date beside them but the document has a note “Made on 01/03/2018” on the front. The Tribunal has considered that the signatures could have been applied at any time after the date the document was made however the name of the nominee is typed into the schedule under “The Employee” and logic suggests that the document schedule and the main body of the agreement were made at the same time namely 1 March 2018.
It is noted that the Job Description Template[1] and the Job Advertisement Template[2] were both signed by the director on 13 February 2018 and specifically use the name of the nominee so the intention to employ the nominee was formed on 13 February 2018 and documents had been prepared and signed at that time by the director. It is noted that the employment contract is dated 1 March 2018 however the Tribunal gives more weight to the Job Description Template and Job Advertisement Template as these clearly indicate a decision was made to employ the nominee as early as 13 February 2018.
[1] 9) ‘Sarah – Job Description Template’ for position of Secretary with Adobe Sign History showing created by RMA on 13 February 2018 and signed by the director on 13 February 2018.
[2] 16) ‘Sarah Caiafa – Job Advertisement Template – Secretary’ with Adobe Sign Document History showing director signed the document on 13 February 2018.
The advertisements provided for the position are dated 14 February 2018;[3] updated 16 August 2018 and placement 26 July 2018. The Position Contribution Statement[4] is dated 21 August 2018 and signed by the director on 21 August 2018. It is further noted that this document referred to the position being advertised on JobSearch from 25 July 2018 to 15 August 2018 and BEST Employment Limited from 2 August 2018 to 15 August 2018 but does not refer to the 14 February 2018 advertisement on jobactive although the regional certifying body advice does refer to this advertisement placed on 14 February 2018. Nonetheless the Tribunal will consider the 14 February 2018 advertisement.
[3] 10) Advertisement on Jobactive dated 14 February 2018 for the position and applicant.
[4] 22) ‘Position Contribution Statement – Secretary – Sarah Caiafa Cesar’ dated 21 August 2018 with Adobe Sign Documents History signed by the director on 21 August 2018 stating that: ‘The position was advertised for 21 days as described below. 34 applications were received during the advertisement period. Jobsearch.gov.au and au.jora.com: from 25 July 2018 to 15 August 2018 BEST Employment Limited: From 02 August 2018 to 15 August 2018.’
The candidates report[5] indicates that 34 candidates applied for the position with the earliest application received on 26 July 2018.
[5] 18) My candidates report for jobactive for Secretary showing 34 candidates with earliest received 26 July 2018 and most recent received on 16 August 2018 with advice advertisement updated on 2 August 2018. Advertisement for secretary on jobactive showing placement 26 July 2018.
It would have been futile for the employer to have gone through a more detailed recruitment process with these 34 candidates or any other candidates that responded because there was no vacancy as the decision to employ the nominee was made on 13 February 2018 as evidenced by the Job Description Template with the nominee’s name on it and signed by the director.
Even if the Tribunal were to accept, and it does not, the decision to employ the nominee was made on the day the employment contract was signed by the director namely 1 March 2018. The Tribunal would then consider the advertisement on jobactive dated 14 February 2018 as being placed some two weeks prior to the decision to employ the nominee but there is no recruitment summary for this advertisement showing candidates listed; qualifications and experience listed; whether they were contacted; who was shortlisted; who was interviewed and why they may have been unsuccessful.
Such a recruitment process would have been futile, as the employer nomination[6] for the nominee was lodged with the Department on 14 February 2018; the same day the advertisement was placed on jobactive[7]. It is plain that the advertisement was not genuine because the decision to employ and nominate the nominee had been made on the same day that the advertisement was placed and there was no opportunity for an Australian citizen or Australian permanent resident to apply for the position because it had already been filled.
[6] 3) Acknowledgement of nomination application dated 14 February 2018.
[7] 10) Advertisement on jobactive dated 14 February 2018 for the position and applicant.
It is noted that all the other advertisements were placed between 25 July 2018 and 15 August 2018 or well after the employment contract was signed by the director on 1 March 2018. As such the Tribunal can place little weight on them as satisfying the regulation.
The Tribunal put to the applicant under s.359AA of the Act that there did not appear to be any recruitment process at the time of employer nomination application with candidates listed; qualifications and experience listed; whether they were contacted; who was shortlisted; who was interviewed and why they may have been unsuccessful. The Tribunal advised that if it gave consideration to this it may find that the applicant could not definitively state that the position could not be filled by an Australian citizen or permanent resident who is living in the same local area as Toowoomba.
Mr Palmer advised he would respond in the hearing and also make a written submission within 14 days. He thought he had seen resumes in the documents for candidates but could not be sure of the interview process because he only joined the company in the second half of January 2019.
He explained that the nominee worked quite closely with another person nominated for the position of contracts administrator in Toowoomba. The two work hand in glove and they have a company car and fuel card. The company accepted this remote working although acknowledging that it produced sub-par results. They were unsure of how long they would have to wait for a decision on the review applications.
He wished to give an overview from his many years of experience in the cleaning industry. He said most Australians would not want to work in the cleaning business as it was degrading and below what they were prepared to do. Most would probably prefer to go on welfare benefits than take a cleaning role. He knew this from firsthand experience. He had been an electrician and when the recession hit, he established a cleaning business with 100 staff and only two Australians were prepared to work in the business. Most of the cleaners were Italian, Yugoslavian and Greek. People needed to work their way up the hierarchy of a cleaning company from cleaner to supervisor and finally to manager and that was why there were very few Australian managers in the cleaning business.
Mr Palmer said that many people who presented well in an interview and were employed for a few months because they lacked cleaning experience would give a negative return to the business. Even in Spotless, a large cleaning company, only 30% of the managers would be from English-speaking backgrounds. He said it’s a sad fact but it is the truth. It is like a bag of rice; people choose the cheapest bag of rice, but you don’t always get the best service with the cheapest. You have to have a thick skin to work in the cleaning sector. Mr Palmer believes there is a stigma attached to working in the cleaning industry and if you took 100 Australians only 15% of them would be working in the cleaning industry. People do not want to be abused and threatened by clients in this industry and they have a duty of care to their employees. It’s a very hard industry he said.
A careful examination of the regional certifying body advice including Form 1404 shows that it did certify the employer nomination on 25 September 2018 as satisfying all their requirements including that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as the nominated position. The notes to the regional certifying body advice state that they have based their decision on the position being ‘well advertised including [by a] recruitment agency’ and listed the advertisements as below including the one from 14 February 2018:
Efforts of recruitment: Jobsearch listing dated 140218 + 250718 - 150818 + Best Employment 020818 - 150818 > 34 applicants. No applicant was able to positively answer yes to all 5 questions re quals/experience.
While the regional certifying body advice is that the nomination satisfied their requirements including that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place it does not change the fact that 1 March 2018 was the day the director signed the employment contract for the nominee and the advertisements postdated this except the one placed on 14 February 2018 which did not have a recruitment summary. Moreover, the employer nomination for the nominee was lodged on 14 February 2018 not allowing an Australian citizen or Australian permanent resident to apply for the position since a decision had already been made to employ and nominate the nominee.
The Tribunal considers the lack of recruitment summary for the 14 February 2018 advertisement and the employer nomination being lodged on the same date of 14 February 2018 are determinative because it cannot definitely be said that the position cannot be filled by an Australian citizen or permanent resident because there are no details on candidates who applied and there was no opportunity for an Australian citizen or Australian permanent resident to genuinely apply and be assessed in a recruitment process since the nomination had already been decided and lodged.
The registered migration agent letter also states that the evidence showing the nominator’s advertising efforts was provided to the Tribunal. The Tribunal notes the letter describes the questionnaire process the candidates went through online and the fact that none of them were determined to be suitable but it does not address the fact that this process was futile as the position had already been filled when the director lodged the employer nomination in favour of the nominee on 14 February 2018 and there was scant evidence of a recruitment process undertaken prior to this date. It is noted that all 34 candidates were deemed unsuitable but no mention was made of a 35th candidate, being the nominee, applying for the position and this reinforces the view that she did not apply for the position when it was advertised much later but had been chosen as the successful candidate on 14 February 2018 when the employer nomination had been lodged.
The Tribunal can place little weight on the regional certifying body advice because it is clear from the construct of r.5.19(4)(h)(ii)(C) that the decision-maker must make a finding on this matter independent of the regional certifying body advice.
The Courts have found that to be the case in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81] where it considered a similar requirement in the pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.[8] In Bharaj (No 3). the Court confirmed that the judgment in Bharaj 2016 was correct in holding that there was nothing in the language, text or structure of r.5.19(4) to support the view that the advice given by a regional certifying body is conclusive evidence that the requirements in subparagraphs (a) to (c) have been met.
[8] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81].
This view is corroborated by the Department’s Procedures Advice Manual[9] which was current when this employer nomination was lodged, and states ‘10.7.2 Consideration of the advice - 10.7.2.1 Overview – The delegate must independently assess the nomination against all the criteria that have been assessed by the regional certifying body in providing their advice.’
[9] [Div5.3/reg5.19] Approval of nominated positions (employer nomination) - Regulation 5.19 (immi.gov.au)
The Tribunal notes the submission[10] by the first agent which deals with Australians emigrating; the skills shortage; the lack of suitable qualifications and experience within the Australian workforce; the difficulties of finding and attracting people into the cooking trade (which is not applicable to this case) and that the 187 visa subclass allows the employer to retain the visa applicant for two years. All of this may or may not be so; but it is evidence that relies on surveys; statistics and opinion and does not go to the need to provide sound evidence that the applicant, at the time of application; could definitively state that the position could not be filled by an Australian citizen or Australian permanent resident living in the same local area as Toowoomba.
[10] 26) Letter from the registered migration agent dated 31 August 2018 regarding complaint about Department handling of the nomination decision.
The submission provided following the hearing[11] stated ‘the applicant has also been invited to address as to why the advertisement relating to these positions postdate the nominees commencing to occupy the positions…the applicant accepts that the advertisement were posted after the positions had been filled by the nominees’. The submission puts forward two arguments in respect of this issue.
[11] 41) Supplementary submission in respect of cases: 1812068, 1812655, 1812666, 1812686 and 1812073, which addresses job descriptions for some of the positions; leases for the regional locations; some nominees working remotely and the lack of advertisements at the time the nominees were employed.
The first argument is that the legal requirement is simply to show that the relevant position cannot be filled by an Australian citizen or permanent resident who is living in the same local area where the position exists and regardless of the timing of the advertisement it remains the case that the applicant could not fill this position with an Australian citizen or permanent resident.
The second argument goes to the need to fill positions which are ‘client facing’ with reliable and suitable employees, namely the nominee, on the basis that the experienced professionals who run the business know their industry and have a clear idea of the quality of candidates that might be available to fill certain roles and this was corroborated by the response to the subsequent advertisements.
The Tribunal will carefully consider these arguments. The first consideration goes to the legal requirement and the meaning of the regulation which states ‘the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place.’
Reliance was placed on the remarks of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] in support of the proposition that the task of statutory construction must begin with consideration of the text itself and that ‘[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention’, albeit it was acknowledged that the meaning of the text may require consideration of context, including the general purpose and policy of a provision.
The text does not say ‘the position may not be filled’ or ‘the position in the opinion of the employer or others cannot be filled’ or similar equivocation. The text states, ‘the position cannot be filled’ and this has a definitive quality to it which requires sound evidence to support the finding that it cannot be filled rather than relying on opinion; general surveys and the like. Because the text is definitive and requires sound evidence that the position cannot be filled, the Tribunal can place little weight on the second argument that the professional opinion of those working for the applicant as to the quality of prospective candidates for the position determined that they should not advertise the position but fill it with the nominee. It is noted that this is the same argument that Mr Palmer put forward at the hearing that the likelihood of a suitably qualified and experienced Australian citizen or permanent resident applying was very low. That may or may not be the case, but the legislation requires more than an opinion from someone familiar with the industry; it requires definitive evidence. The Tribunal does not accept this argument.
The first argument goes to timing and posits that the timing of the advertisements does not matter if the quality of the candidates were such that the position could not be filled by an Australian citizen or permanent resident. The Tribunal will be guided again by their Honours Hayne, Heydon, Crennan and Kiefel JJ[12] and their statement ‘the meaning of the text may require consideration of context, including the general purpose and policy of a provision’.
[12] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]
The stipulation in r.5.19(4)(h)(ii)(C) is that the Minister must approve the nomination if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place. In other words, if there is an Australian citizen or permanent resident who is suitably qualified and experienced for the position living in the same local area then the nomination must not be approved. The policy is clear that Australian citizens or permanent residents are to have precedence in the labour market over foreign skilled workers, other matters being equal. This is intended to be determined prior to the employer nomination being lodged not at some indeterminate time in the future. If it were otherwise applicants could place an advertisement at any time up to a decision by the Minister or the Tribunal.

It is also clear that if an advertisement postdates an appointment of a nominee to a vacant position by some period of time, any suitably qualified or experienced Australian citizen or permanent resident who could have filled the position at the time of appointment would have been denied the opportunity to apply for the position.
It is implausible that having filled a position with a nominee for some weeks or months that the employer would advertise the position and then dismiss the nominee in favour of a suitably qualified Australian citizen or permanent resident. They would be unlikely to do this because of the potential disruption to the smooth operation of their business and the risk of an unfair dismissal claim by the nominee. For these reasons the Tribunal does not accept that the advertisement can postdate the appointment of the nominee to the position.
There is also the conundrum that there is no longer a vacancy, so the advertisement and recruitment process is not genuine. This non-genuine process seems not to have bothered the first registered migration agent who must have been aware that the 34 candidates and unknown others who applied were engaged in a futile process.
The current registered migration agent claims that simply because there were not suitable candidates for the position that again the timing of the advertisement is not determinative. The Tribunal considers this a disingenuous argument because having appointed the nominee to the position with all the deterrents of business disruption and unfair dismissal claims if the nominee is terminated in favour of a suitably qualified and experienced Australian citizen or permanent resident, the applicant is reasonably going to be cautious and disinclined to find an Australian citizen or permanent resident a successful candidate for the position. It was the intention of the policy that the applicants give precedence to suitably qualified and experienced Australian citizens or permanent residents not that applicants be cautious or disinclined to appoint them. The Tribunal does not accept that the allegedly unsuitable candidates from the postdated advertisement justify having the advertisement postdating the appointment of the nominee.
The Tribunal considers the previous agent may have provided inadequate advice given that their registration had lapsed and the regional certifying body advice including Form 1404 was not provided and resulted in part of the refusal by the delegate. The current registered migration agent and the executive, Mr Palmer, have done their professional best with a situation that should have been rectified at the time of application.
While the Tribunal cannot and does not give migration advice it may have been open to the applicant to lodge a new employer nomination and linked visa application in the Regional Sponsored Migration Scheme employer nomination - Visa subclass 187 in the direct entry stream following the refusal of the original by the delegate of the Minister and thus rectified the failures in the original application. It is noted that the 187 scheme ceased on 16 November 2019 and was open to new applications until that date.
It is an unfortunate situation because the Tribunal acknowledges the growth and profitability of the company and the dynamic nature of the leadership team however it is duty bound to apply the legislation to the evidence before it.
At the time of application there was no recruitment summary for the 14 February 2018 advertisement for the position; the employer nomination was lodged on the same day being 28 February 2018 thus committing the employer to the nominee and the other advertisements postdate the appointment of the nominee and are not accepted by the Tribunal for the reasons given above. As such the applicant is unable to state definitively as required by the text of the legislation that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as Toowoomba.
Accordingly, r.5.19(4)(h)(ii)(C) is not met.
Accordingly, the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
Member

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

[2021] AATA 1070

22 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Employer nomination Refusal review	Visa application refusal review
1812655	1816415
1812666	1816620
1812073	1816377
1812068	1814041
1812686	1816374

Tax return	2,020	2,019	2,018
Income	6,909,013	6,684,124	5,633,627
Sub-contractor	3,827,507
Employee base	1,290,608	3,675,189	763,205
Wages	10,074	26,116
Expenses	6,514,344	6,321,773	5,720,114
Profit /Loss	394,669	363,783	(86,487)

13 February 2018	9) ‘Sarah – Job Description Template – Secretary (General) History’ with Adobe Sign History showing created by RMA on 13 February 2018 and signed by the director on 13 February 2018.
13 February 2018	16) ‘Sarah Caiafa – Job Advertisement Template – Secretary’ with Adobe Sign Document History showing director signed the document on 13 February 2018.
14 February 2018	10) Advertisement on jobactive dated 14 February 2018 for the position and applicant.
14 February 2018	3) Acknowledgement of nomination application dated 14 February 2018.
1 March 2018	22) Employment contract with statement ‘made on 1 March 2018’ and signed by both the director and nominee.
26 July 2018	17) My candidates report for jobactive for Secretary showing 34 candidates with earliest received 26 July 2018 and most recent received on 16 August 2018 with advice advertisement updated on 2 August 2018. Advertisement for secretary on jobactive showing placement 26 July 2018. All candidates are listed as ‘Unsuccessful Candidate’.
14 August 2018	26) ‘Sarah Caiafa – AAT MR6 Nomination’ with Adobe Sign History showing document created on 14 August 2018 and signed by the director on 14 August 2018.
21 August 2018	21) ‘Position Contribution Statement – Secretary – Sarah Caiafa Cesar’ dated 21 August 2018 with Adobe Sign Documents History signed by the director on 21 August 2018 stating that: ‘The position was advertised for 21 days as described below. 34 applications were received during the advertisement period. Jobsearch.gov.au and au.jora.com: from 25 July 2018 to 15 August 2018. BEST Employment Limited: From 02 August 2018 to 15 August 2018.’
25 September 2018	Regional certifying body advice including Form 1404 dated 25 September 2018 with advice ‘Well advertised including recruitment agency’.