Scerri Enterprises Pty Ltd (Migration)

[2023] AATA 204

Scerri Enterprises Pty Ltd (Migration) [2023] AATA 204 (26 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Scerri Enterprises Pty Ltd

REPRESENTATIVE:  Mr Xiao (David) Huang (MARN: 0210771)

CASE NUMBER:  1919874

HOME AFFAIRS REFERENCE(S):          BCC2018/761394

MEMBER:Susan Reece Jones

DATE:26 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 January 2023 at 11:18am

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Cafe or Restaurant Manager – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control –no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– Financial Statements provided – business has the financial capacity to carry the cost of employing the nominee as a full-time employee over a full financial year – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 15 February 2018. The requirements for the approval of the nomination of a position of Cafe or Restaurant Manager (ANZSCO 141111) 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. 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 Department found that the applicant did not have the financial capacity to provide full-time paid employment to the nominee for a minimum period of two years as required by the regulations.

5. On 26 July 2022, the Tribunal wrote to the applicant’s representative, Mr David Huang of Insight Migration, pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the applicant to provide the Tribunal with further information in support of this application.

6. On 9 August 2022 the representative submitted the following:

   ·ASIC company and business name search: 5 August 2022

   • ASIC Current & Historical Company Extract: 5 August 2022
   • Company Tax Returns for 2020 and 2021
   • Business Activity Statements for April to June 2020, July to September 2020, October to December 2020, January to March 2021, April to June 2021, July to September 2021, October to December 2021, January to March 2022,
   • Financial Statements for 2020, 2021
   • Employee Agreement dated 12 February 2018: salary $54,000
   • Organisational Chart
   • Position Description
   • Market rate submission
   • RSMS Form 1404 Regional Development Victoria: 19 June 2018
   • Local job advertisements
   • Genuine need submission
   • Work emails
   • References from colleagues and customers
   • Menus, Social media posts

7. On 9 November 2022, the Tribunal requested further information from the applicant. On 23 November and 7 December 2022, the representative submitted the following documents to the Tribunal:

   ·Response to issues the Department raised in refusal

   ·Current and Historical Company Extract

   ·Overview of business structure and operation

   ·Organisational Chart and list of staff

   ·Request for EOT to submit 2022 Return & Financial Statement

   ·Tax Returns 2020, 2021

   ·Financial Statements: 2019, 2020, 2021

   ·Nominee CBA Bank Statement evidencing salary

   ·VETASSES Nominees’ Assessment and Qualification

   ·Business Activity Statements (BAS) July 2019 to June 2020, July 2020 to June 2021, July 2021 to June 2022

   ·Genuine need statement

   ·LMT payment and details

   ·Nominee PAYG: 2018 to 2022

   ·Nominee ATO Notice of assessment: 2018 to 2022

   ·Nominee Superannuation: HostPlus

   ·Letter from Suntax Accountants dated re applicant business growth in turnover for the last 4 years

8. On 20 December 2022, the Tribunal wrote to the applicant to clarify the role of employee Mr Angus McTaggart.  According to the applicant’s Organisation Chart dated 21 November 2022, employee Mr Angus McTaggart is stated as a full time “Café Allrounder”. However, a Google search of the applicant’s business on 16 December 2022, shows that Mr McTaggart is described on LinkedIn as the applicant’s Cafe or Restaurant Manager since July 2022. The applicant was further asked to confirm as to whether the nominee Ms Kyoung Eun Mun is still employed as the Cafe or Restaurant Manager or whether Mr Angus McTaggart is actually the Cafe or Restaurant Manager.

9. On 23 December 2022, the applicant director, Mr Scerri, responded to the Tribunal as follows:

   As the Director and Owner of the nominating business Vics @ Seasons, I can confirm that the nominee Ms. KyoungEun (Christina) MUN is still employed as the Cafe Manager, a role in which she has been working since 11 May 2018 until now.

   Please be advised that Mr. Angus McTaggart is a Café All-rounder or a Supervisor at most, not a Café and Restaurant Manager.

   My business Vics @ Seasons in Riddells Creek used to have only the breakfast and lunch services until around April 2022 after the COVID when I introduced the night pizza services. Obviously, Christina cannot be working there all day from 7:30am to 10:30pm, so I brought in Mr. Angus McTaggart over, who works in my other business Vic’s Food and Wine in Sunbury, to help with the night services.

   The difference between Angus’s and Christina’s work is Angus does not handle the following duties, which Christina does:

   •Arranging roster

   •Communicating (including making complaint) with suppliers

   •Arranging the purchasing and pricing of goods according to budget

   •Maintaining records of stock levels and financial transactions

   •Selecting, training and supervising waiting staff

   Angus is getting paid at the Award rate only, which is lower than what Christina is getting paid. Angus has never been officially announced as a Café Manager at Vics @ Seasons at Riddles Creek. Neither has him signed a formal employment contract for a Café Manager role. So, Angus’s role is more like a shift supervisor, not the Café Manager.

   10.      In reaching a decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

10. 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

11. 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.

    The application is compliant: reg 5.19(4)(a)

12. 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). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

13. The Tribunal is in receipt of additional material in support of the application upon review, including a statement outlining the genuine need to employ the nominee in the nominated position. In addition, the applicant has provided the Tribunal with an overview of its business operations, its most recent Organisation chart and a submission as to why the nomination is essential to the applicant’s business operations in the future.

14. 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)

15. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

16. The applicant’s director Mr Victor Scerri submitted evidence to the Tribunal to show that the applicant’s restaurant business was established on 11 April 2016 and trades under the business name “Vic’s at Seasons”. The restaurant is located in Riddell’s Creek, Macedon Ranges, regional Victoria. The applicant operates 7 days a week.

17. On the basis of the evidence provided, the Tribunal finds that the applicant is actively, lawfully and directly operating a business in Australia.

18. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

19. 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. 

20. There is no evidence to suggest that the applicant operates a labour hire business.

21. Accordingly, the requirement in reg 5.19(4)(c) is met.

    Term of employment of the visa holder: reg 5.19(4)(d)

22. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

23. The Department, in assessing the applicant’s financial capacity to comply with the requirement to provide the nominated position with at least two years of full-time employment, noted that whilst the applicant supplied BAS documents and BAS report sales, wages and other tax obligations, it did not provide a breakdown of profit nor the assets or liabilities of the business. Consequently, the Department placed little weight on the documents as evidence of the financial status of the business. Further, the applicant did not provide any updated financial documentation showing the current business financial situation, or any material to support the business projected financial performance. On this basis, the Department assessed that the documentation provided was not adequate to demonstrate that the business had the financial capacity to carry the cost of employing the nominee as a full-time employee over a full financial year, as well as to pay all the other financial commitments of the business.  

24. The Tribunal notes that the nominee’s initial Employment Agreement dated 12 February 2018 listed a salary of $54,000, plus superannuation. The nominee’s Employment Agreement states that the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.

25. In assessing the company’s financial capacity to comply with the requirement to provide the nominated position with at least two years of full-time employment, the Tribunal notes that the applicant has supplied BAS which show as follows:   

Sales income $	Salaries $
TOTAL
Jan - Mar 2019	136, 128	71, 770
Apr - Jun 2019	149, 075	58, 322
Jul – Sept 2019	175, 491	20, 383
Oct - Dec 2019	135, 336	16, 724
TOTAL	596,030	167,199
Jan  – March 2020	104, 246	15, 106
Apr - June 2020	69,559	8,921
July  – Sept 2020	115,023	16,579
Oct- December 2020	188,185	23,673
TOTAL	477,013	64,279
Jan -Mar 2021	126,934	24,549
Apr - Jun 2021	184,095	25,457
Jul - Sept 2021	236,393	22,982
Oct - Dec 2021	234,163	36,470
TOTAL	781, 585	109, 458
Jan - Mar 2022	218,439	33,207
Apr – Jun 2022	226, 242	24, 119
TOTAL

1. The Tribunal notes the applicant’s sales income stated in each quarter reflect the various COVID-19 lockdowns in Victoria in 2020 and 2021. However, the Tribunal notes that the applicant’s sales in the first two quarters of 2022 indicate a strong recovery to the extent that the sales for the first 6 months of 2022 (calendar year) are only $35,000 less than the entire 2020 sales of $477,013.

2. The Tribunal has assessed the applicant’s Financial Statements which show as follows:

2018	2019	2020	2021
Total income	581, 387	607, 218	445,260*	881,059
Wages	275, 224	297, 667	190, 961	225,086
Superannuation	21, 781	22, 243	19, 184	20,096
Total assets	411, 275	417, 355	397, 878	469,391
Total liabilities	456, 793	448, 883	296, 874	90,162

* $34,000 from ATO Cash Flow Boost and JobKeeper subsidy 

1. The applicant submitted a response to the Department’s decision, stating that the applicant, which commenced operating in early 2016, has been profitable since 2018. The applicant’s accountant, Mr Mark Lawry, Director of Suntax Accounting, provided a submission in support of the applicant’s ability to meet its financial obligations in providing the nominee with employment, based on the following:

   ·COVID19 global pandemic has been almost contained and is no longer a serious threat to the public health. Australia has re-opened its borders and Victoria has dropped its lockdowns and restrictions for quite some time.

   ·The economy has been returning gradually to its normality, which is a blessing for all businesses including this client.

   ·According to the BAS figures at hand, the client’s turnovers are increasing

2. The applicant noted in its submissions that the COVD-19 pandemic “killed many businesses”. The Tribunal notes however, that the applicant’s sales have recovered strongly over financial year 2021, and as indicated in the first half of calendar year 2022. The Tribunal also notes that the applicant’s asset to liability ratio is such that the applicant’s total assets far exceed the applicant’s liabilities.

3. The Tribunal notes that the nominee has been employed - and paid - by the applicant since 2018. The applicant provided the Tribunal with the nominee’s PAYG and Notice of Assessments (as set out in paragraph 38 below), in addition to the nominee’s payslips from 2019. In addition, the applicant provided details of the nominee’s superannuation (HostPlus) statement, which also shows the regular superannuation contributions from the applicant.

4. The Tribunal has considered the applicant’s submissions including all the Financial Statements provided. The Tribunal notes that the nominee has been employed by the applicant since 2018 and that the applicant’s business is growing strongly post COVID-19. On the basis of the documentation provided, the Tribunal is of the view that the applicant has demonstrated that the business has the financial capacity to carry the cost of employing the nominee as a full-time employee over a full financial year and has the capacity to provide full-time paid employment to the nominee for a minimum period of two years as required by the regulations.

5. Accordingly, the requirement in reg 5.19(4)(d) is met.

   No less favourable terms and conditions of employment: reg 5.19(4)(e)

6. 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.

7. The Tribunal notes that the nominee’s initial Employment Agreement dated 12 February 2018 listed a salary of $54,000 plus superannuation.

8. The nominee’s Employment Agreement states that the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.

9. The nominee’s Organisation Chart shows that the applicant employs 5 full time employees, and 7casuals, all of whom are Australian or Permanent Residents with the exception of the nominee.  

10. The nominee’s PAYG and Notice of Assessments show as follows:

$	2019	2020	2021	2022
PAYG	46, 782	38, 310	42, 244	50, 371
Notice of Assessment	53, 779	43, 084	41, 958	33, 912

1. The Tribunal notes that the nominee has not been working the hours as contracted in the Employment Agreement due to COVID-19 restrictions in 2020, 2021 and 2022, and hence the nominee’s payments have been lower than as contracted.  

2. The Tribunal has had regard to salary surveys and other salary data, including from:

   • the Payscale website (accessed 16 December 2022) indicates that a Café or Restaurant Manager in Australia earns between $50,000 - $72,000, or on average $58,274 per annum: Restaurant_Manager/Salary

3. The Tribunal could not find any advertisements for Café or Restaurant Manager in the Macedon region of Victoria listed on Seek.com.au as at 16 December 2022.

4. The Tribunal has had regard to the nominee’s initial Employment Agreement dated February 2018 which provides for a salary of $54,000. The Tribunal notes that the applicant has nominee has been employed – and importantly, paid – by the applicant since 2018.     The Tribunal acknowledges that the applicant’s business was heavily impacted by the COVID-19 pandemic across 2020 and 2021, and hence the nominee’s salary is lower than as contracted because she did not work as much due to operating restrictions. That said, the applicant’s business is now recovering well, and the nominee is being paid in accordance with the Employee Agreement with the applicant.

5. The Tribunal is satisfied (as noted in paragraph 9 above), that there is no Australian citizen or permanent resident currently performing equivalent work to the nominee in the same workplace and location.

6. Accordingly, the requirements of reg 5.19(4)(e) are met.

   No adverse information known to Immigration: reg 5.19(4)(f)

7. 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 regs 1.13A and 1.13B.

8. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

9. Accordingly, the requirements of reg 5.19(4)(f) are met.

   Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

10. 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.

11. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

12. 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)

13. 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 (see legislative instrument IMMI 18/005, 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.

1. The applicant operates a Cafe and Restaurant in the Macedon Ranges area of Regional Victoria. The applicant must meet the requirements set out in the second dot point above as the nominated position and business is located in Riddells Creek (postcode 3431), which constitutes Regional Australia as set out in IMMI 17/059.   

2. The applicant submitted its RSMS Form 1404, Regional Development Victoria (Bendigo) dated 19 June 2018.  

3. The Australian and New Zealand Standard Classification of Occupations – ANZSCO - specifies that the tasks for the position of Café or Restaurant Manager (ANZSCO 141111) as:

   ·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

4. The applicant provided a copy of the nominee’s Position Description which is consistent with ANZSCO. The applicant submitted to the Tribunal that the role of the nominee as Cafe or Restaurant Manager is to organise and control the operations of the café / restaurant and to provide dining and catering services. 

5. The Indicative Skill Level of this unit group must have a level of skill commensurate with the qualifications and experience of AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

6. In this case, the nominee has a Diploma of Event Management from William Angliss Institute which is assessed (by VETASSESS, a copy of which was provided) as comparable to the educational level of an AQF Diploma. the Tribunal further notes that the nominee also has a Certificate III in Meeting and Events

7. The Tribunal notes that the applicant also previously worked as Café Manager at BHP’s headquarters in Melbourne for three years. 

8. The occupation of Cafe or Restaurant Manager as specified by in instrument IMMI 18/005, states that the positions for which occupation is inapplicable (refer section 9), are where the position is in a limited-service restaurant.  A limited service restaurant includes the following:

   ·     a fast food or takeaway food service;

   ·     a fast casual restaurant;

   ·     a drinking establishment that offers only a limited food service;

   ·     a limited service cafe, including a coffee shop or mall cafe;

   ·     a limited service pizza restaurant.

9. In the Tribunal’s assessment, that whilst there are the above noted occupational caveats, the Tribunal is of the view that they do not apply in this case   and the Tribunal is satisfied that the applicant’s position is not excluded because of them. Whilst the Tribunal notes that the applicant does serve pizza (refer paragraph 9 above), the applicant’s business could not in the Tribunal’s assessment, be classed as a “limited service pizza restaurant”.

10. The applicant provided the Tribunal with a detailed report regarding the Local Market Testing (LMT) undertaken including market salary, and Job advertisements for similar positions in the same area to show the market salary.

11. The applicant provided the Tribunal with copies of its job advertisements (and payments for the advertising), for the position of Café or Restaurant Manager. The applicant’s submission also stated that the applicant had reviewed the job advertisements available on the internet before determining the base salary and named various comparator restaurants in Regional Victoria. The Tribunal was also provided with copies of the advertisements at the comparator restaurants.

12. The applicant’s director Mr Scerri’s submission to the Tribunal of November 2022 confirmed the availability of the nominated position to the nominee and that the Position Description remains valid, as the nature of the applicant’s business and the need for the position, remains unchanged.

13. The applicant’s director further submitted that “we were actually hoping to fill the position by local Australians, and we never aimed at overseas employees only. This is also to say, the terms and conditions are in accordance with the Australian standards, regardless of the candidates’ immigration or citizenship status.”

14. The applicant advised the Tribunal that it had commenced advertising the position on both SEEK and INDEED in November 2017 as the applicant was looking for suitable Australian candidates. As the applicant had no success, in February 2018, the applicant further advertised in the local Sunbury / Macedon Ranges Leader, and online on Jora and Seek.

15. The applicant provided the Tribunal with detail of the LMT, together with dates, copies of advertisements, and proof of payment in regard to all of its advertising, including invoice for SEEK advertisements, invoices from NewsCorp for the package local papers, job advertisement with NewsCorp. In addition, the applicant provided the responses and results for the LMT with details of each respondent to the advertisements.

16. The applicant provided numerous work examples of the nominee including rostering (on average days, Christmas period, in COVID19), staff supervision (briefing on Dress Code), hiring, organising events and functions, managing deliveries and dealing with financial matters relating to the running of the applicant’s business. In addition, Mr Scerri confirmed with the Tribunal that the nominee’s role requires, inter alia, that the nominee must select, train and supervise wait staff, manage all staff rosters, communicate with suppliers, manage complaints, arrange the purchasing and pricing of goods according to budget, maintaining records of stock levels and all financial transactions

17. The Tribunal has had regard to the applicant’s Facebook pages, photographs and other materials submitted in support of the application. The applicant provided numerous photographs, and a menu (which also includes provision of alcoholic beverages). The Tribunal also notes that the applicant caters for weddings and events at the applicant’s restaurant.

18. The applicant submitted many letters from its customers in support of the nominee’s application. The many references provided endorsements of the skills of the nominee including reference to her community engagement.  As the nominee commutes from Melbourne to the applicant’s business in regional Victoria, she is apparently well known to the Vline regional Bendigo train management and the Tribunal received a submission in support of the nominee from Ms Roslyn Nannipierei, VLine Regional Train Network Manager.

19. Applicant director Mr Scerri – who is also the Head Chef at the applicant’s business- described the nominee as a valuable employee who leads by example. In addition, Mr Scerri stated that the nominee has improved the management of the applicant’s operations.  

20. The Tribunal notes that the applicant also operates an additional enterprise, Vic’s Food and Wine in Sunbury.

21. The Tribunal has had the benefit of considerable additional information upon review. Having reviewed all the submissions provided, both as part of the original application and to the Tribunal on review, and having regard to all of the above, the Tribunal is satisfied that the duties of the nominated position do correspond with those listed within the relevant instrument for the designated occupation, and that there is a genuine need for the paid position under the applicant’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident.

22. In accordance with the requirements set out in Regulation 5.19(4)(h), the Tribunal is satisfied that in accordance with: 

    ·r 5.19(4)(h)(ii)(A) and E, the position and nominator’s business is located in regional Australia;

    ·r 5.19(4)(h)(ii)(B), that as noted in paragraphs 55-73 above, the applicant has a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control;

    ·r5.19(4)(h)(ii)(C), the position cannot be filled by a locally resident Australian citizen or permanent resident;

    ·r5.19(4)(h)(ii)(D), the tasks of the position of Cafe or Restaurant Manager (ANZSCO: 141111) correspond to those of an occupation specified in the relevant legislative instrument, IMMI 18/005;

    ·r5.19(4)(h)(ii)(DA), the occupation is applicable to the proposed employee in accordance with the specification of the occupation as Accountant (as specified in IMMI 17/080 and meeting the occupational caveats of the role); and

    ·r5.19(4)(h)(ii)(F), that a regional certifying body (Regional Development Victoria, Bendigo), is located in the same State or Territory as the location of the position.

23. Accordingly, the requirements of reg 5.19(4)(h) are met.

24. 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

25. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Susan Reece Jones
    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).