Sanjh Indian Restaurant Pty Ltd (Migration)

Sanjh Indian Restaurant Pty Ltd (Migration) [2021] AATA 3450 (11 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sanjh Indian Restaurant Pty Ltd
CASE NUMBER:  1822775
HOME AFFAIRS REFERENCE(S):          BCC2016/4030305
MEMBER:Terrence Baxter
DATE:11 August 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 August 2021 at 9:05am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Restaurant Manager –training benchmark commitments and obligations – genuine need for the nominator to employ a paid employee – position located in regional Australia – actively and lawfully operating a business in Australia – nominee was employed in the nominated position in a full time capacity – financial capacity of the business to employ the nominee for at least 2 years– no less favourable terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 5.19
CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Sanjh Indian Restaurant Pty Ltd, applied for approval on 29 November 2016. The applicant nominated Ms Harpreet Kaur (the nominee) in the position of Restaurant Manager. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the applicant did not demonstrate the financial capacity to employee a person in the nominated position at the specified salary, and accordingly failed to establish the nominee will be employed on a full-time basis in the position for at least two years.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 August 2018.
Mr Harkanwal Singh, the sole director of the applicant, appeared before the Tribunal by video conference on 25 May 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The hearing was also combined with an application for review of a decision to refuse the approval of another nomination made by the applicant, and application for review of a decision to refuse the visa application related to that nomination. The Tribunal also received oral evidence from the nominee by video conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
The applicant was represented in relation to the review by its legal practitioner, Ms Suzanne Weel of Ausway Migration. The representative attended the Tribunal hearing by video conference.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence presented prior to the hearing
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.A Form 1404 issued by the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 24 November 2016, and assessment statement also dated 24 November 2016.
b.Evidence of the applicant’s tenancy of its business premises.
c.Activity statements for the period from January 2016 to September 2016.
d.An ASIC Certificate of Registration for the applicant.
e.Market salary evidence.
f.Current ABN information for the applicant.
g.An undated business bank statement.
h.An employment contract of the nominee dated November 2016.
i.Takeaway and dine-in menus.
j.A business plan of the applicant and an organisational chart.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.An annual superannuation statement of the nominee for the 2019 financial year.
c.An Australia and New Zealand Standard Classification of Occupations (ANZSCO) extract for the occupation of Café and Restaurant Managers.
d.Payslips of the nominee from August 2020, and the period from January to February 2021.
e.Financial reports for the 2018 and 2019 financial years.
f.Copies of documents previously provided to the Department.
g.A position description.
h.Submissions from the representative dated 31 August 2020, 19 February 2021 and 20 May 2021.
i.A business bank statement of the applicant for the period from January to March 2020.
j.An ASIC Australian company summary extract and company statement.
k.Submissions from the applicant’s accountant dated 17 February 2020, 2 December 2020 and 17 May 2021.
l.Website reviews of the applicant and map showing the location of the business premises.
m.Extracts of the applicant’s Facebook page.
n.PAYG payment summaries of the nominee for the 2018 to 2020 financial years.
o.The company tax return for the 2019 financial year.
p.Updated market salary evidence.
q.Updated organisational charts.
r.A Princess Alexandra Hospital discharge summary of the director’s spouse dated 22 July 2020.
s.Activity statements for the period from July 2020 to March 2021.
t.Draft company tax return and financial report for the 2020 financial year.
u.A scan of the business bank account information of the applicant.
v.A job advertisement for the position and a summary table of disqualified applicants.
Evidence presented at the hearing regarding the applicant’s operations
Mr Singh gave evidence regarding the applicant’s business operations. He stated that the applicant company had been formed in January 2016 and that it commenced operating a restaurant known as the Sanjh Indian Restaurant in Laidley, Queensland between August and October 2016. He said that the restaurant offered dine-in, takeaway and delivery services with a seating capacity of 51 persons.
Mr Singh said that the COVID-19 pandemic had adversely affected the restaurant for dine-in patrons, but that takeaway and delivery services had done well. He said that it had not been necessary for the restaurant to completely close at any time.
The nominee gave evidence of her employment in the position and the tasks performed by her in that position.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.Submissions from the representative dated 9 June 2021.
b.A financial report for the 2020 financial year.
c.The company tax return for the 2020 financial year accompanied by evidence of its lodgement.
d.Updated evidence of the applicant’s tenancy of its business premises.
e.Letters from Queensland Health Inala confirming the admission of the director’s spouse to the Princess Alexandra Hospital on 17 March 2021 and as of 1 June 2021.
f.Medical certificates of the director’s spouse dated 20 April 2021 and 19 August 2020, in addition to a hospital prescription.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1) of the Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed January 2021).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Restaurant Manager. The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Restaurant Manager under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
Having found that reg 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant produced to the Tribunal recent taxation returns, financial statements, activity statements and ASIC evidence in respect of the applicant. The advice from the Australian Business Register confirms that the applicant’s ABN is active and that the applicant is registered for GST. Mr Singh gave evidence of the business conducted by the applicant.
The applicant’s financial statements reveal that it has recorded sales of $225,163, $312,178 and $309,547 in the 2018, 2019 and 2020 financial years respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely the operation of a restaurant.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Mr Singh gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Employment Contract dated 17 November 2016 produced to the Tribunal provides that the nominee is to work full-time for 38 hours per week. The position description is Restaurant Manager. The document further provides that the agreement is to commence on the grant of the nominee’s visa. Mr Singh confirmed that the visa referred to in the Employment Contract was the nominee’s Subclass 187 visa. The contract provides that the employment is permanent and ongoing for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The financial statements provided by the applicant to the Tribunal disclose as follows:

Financial year

2018

2019

2020

Sales

$225,163

$312,178

$309,547

Net profit

$33,834

$46,392

$22,529

Net assets

$37,483

$51,314

$73,197

The delegate found that, based on the information provided to the Department, the applicant had not demonstrated the financial capacity to pay the full-time salary for the nominee for at least two years. The nomination application was made on 29 November 2016. As the applicant had commenced trading only shortly prior to that date, the applicant was unable to provide financial statements to the Department. The activity statements for the March, June and September quarters in 2016 record no sales in the first two quarters and sales of only $1,895 in the September quarter. Not surprisingly, in the absence of further financial information, the delegate was not satisfied that the applicant had demonstrated its capacity to provide full-time employment to the nominee for at least two years.
The financial statements provided to the Tribunal demonstrate that, although the scale of the applicant’s business operations is relatively modest, the applicant has recorded trading profits in the last three financial years and that its net asset position has improved during each of those years. The Tribunal notes that the applicant’s sales decreased slightly in the 2020 financial year and that its net profit decreased significantly in that year. Mr Singh attributed the downturn in sales and profit to the COVID-19 pandemic. The Tribunal notes from the activity statements that the applicant’s sales were strong until the December 2019 quarter and that the sales figures decreased in the March 2020 quarter and particularly in the June 2020 quarter. Sales in the March 2021 quarter were stronger than the corresponding quarters for both 2019 and 2020.
Mr Singh stated that the applicant had employed the nominee part-time in the 2018 financial year and full-time subsequently. The nominee’s PAYG payment summaries reveal that she was paid salaries of $45,870 and $49,946 respectively in the 2019 and 2020 financial years. The salary payable to the nominee under the Employment Contract is $55,000 per annum. The Tribunal is satisfied that the applicant has the capacity to pay the nominee’s salary specified in the Employment Contract for at least two years. Having regard to the overall trading performance of the applicant, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Restaurant Manager in accordance with the Employment Contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
Accordingly, as the requirements of both reg 5.19(4)(d)(i) and (ii) are met, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Employment Contract provides that the applicant will pay to the nominee a salary of $55,000 per annum plus superannuation, expressed in the contract to be at the rate of 9.5% of gross wages. The nominee is entitled to leave in accordance with the provisions of the contract.
The applicant’s organisational chart confirms that there is no Australian citizen or permanent resident filling the role of Restaurant Manager at the location at the present time. The applicant produced to the Tribunal evidence from PayScale that the average salary payable to a Restaurant Manager in Brisbane is $54,704 per annum and from the platform Indeed that the average salary for that position in Brisbane is $54,029 per annum. The applicant produced copies of job advertisements with Indeed for the position of Restaurant Manager in Brisbane with advertised salaries of $54,000 and $55,000.

The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by the Chamber of Commerce and Industry, Queensland, Toowoomba, dated 24 November 2016, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or 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 reg 1.13A and reg 1.13B of the Regulations.
There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
Mr Singh gave evidence that the applicant’s business is conducted at Laidley, Queensland. The ASIC company statement for the applicant states that the address of the business premises is 103 Patrick Street, Laidley, QLD 4341, a location in regional Australia according to the relevant instrument. This address is confirmed by the lease of the business premises. Based on the evidence presented, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control
The representative provided a written submission regarding the genuine need to employ a Restaurant Manager at the location. Mr Singh gave evidence that, after the business started, he and his wife, Lakhwinder Kaur, had operated the business for a period of time. However, he stated that his wife has a serious medical condition and that he no longer performs any management tasks at the restaurant. He said that he is required to look after his wife and seven-year-old daughter whom he drops off to school and collects from school each school day.
The applicant provided to the Tribunal medical evidence that Ms Kaur suffers from a psychotic illness and has required hospitalisation for treatment. The evidence establishes that she has been certified as being unfit for work from 29 March 2021 to 29 June 2021 and that, as of 1 June 2021, Ms Kaur had been admitted to the Princess Alexandra Hospital with the length of admission being at that stage unknown.
Mr Singh stated that he resides at Richlands and that he travels to the restaurant to confer with the nominee approximately once per week. He said that the trip from his residence to the restaurant took approximately 50 minutes by car each way. The Tribunal is satisfied that Mr Singh is unable to fill the role of Restaurant Manager personally because of his family commitments and that the business has a genuine need to employ an employee in that position.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 39 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in the position of Restaurant Manager at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The applicant has provided a copy of the job advertisement for the position together with a recruitment report. The report revealed that several applicants for the position did not reside locally. Of the applicants who were living locally, none had the required qualifications or experience. The assessment provided by the RCB stated that the Chamber of Commerce was aware of difficulties in filling regional positions and that it was unlikely that any local applicants would have knowledge of Indian food.
Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulation 5.19(4)(h)(ii)(D) and (DA) – the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant was Café or Restaurant Manager, which has the six-digit ANZSCO code 141111 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in ANZSCO for that occupation include:
·planning menus in consultation with chefs
·planning and organising special functions
·arranging the purchasing and pricing of goods according to budget
·maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders.
The responsibilities of the Restaurant Manager according to the job description are generally consistent with the tasks specified in ANZSCO.
At the hearing, Mr Singh gave evidence regarding the tasks performed by the nominee. His evidence largely followed the wording of the tasks in ANZSCO. In answer to direct questions from the Tribunal regarding the nominee’s tasks, Mr Singh stated:
a.That the nominee performed all tasks necessary to manage the restaurant.
b.That the nominee consulted with the chef in planning the menu.
c.That the nominee planned special functions for the restaurant including the taking of bookings and organising decoration of the restaurant.
d.That the nominee handled the financial transactions of the restaurant including operation of a company credit card and the banking of cash receipts.
e.That the nominee organised the purchase of supplies for the restaurant, although he said that he occasionally did some ordering as well.
f.That the nominee handled engagement of new staff when required, including advertising for the position.
The Tribunal is satisfied that, as a result of Mr Singh’s personal commitments, he is unable to personally perform management tasks in the business and that the tasks to be performed in the position correspond to the tasks of the occupation of Café or Restaurant Manager specified by the Minister in the relevant instrument, being IMMI 17/058. Evidence has been produced to the Tribunal that the nominee holds a Diploma of Management and the Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and (DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 49 above, the Tribunal is satisfied that the business operated by the applicant is located at 103 Patrick Street, Laidley, QLD 4341, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same state as the location of the position has advised the Minister about the matters mentioned in reg 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 39 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ 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)       both 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;
(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 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 3450

11 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Financial year	2018	2019	2020
Sales	$225,163	$312,178	$309,547
Net profit	$33,834	$46,392	$22,529
Net assets	$37,483	$51,314	$73,197