Shanti Pathak Pty Ltd as Trustee for the Maa Durga Trust (Migration)
[2021] AATA 1678
•22 April 2021
Shanti Pathak Pty Ltd as Trustee for the Maa Durga Trust (Migration) [2021] AATA 1678 (22 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Shanti Pathak Pty Ltd as Trustee for the Maa Durga Trust
CASE NUMBER: 1819626
HOME AFFAIRS REFERENCE(S): BCC2016/4116364
MEMBER:Terrence Baxter
DATE:22 April 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 22 April 2021 at 12:16pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – financial capacity to maintain term of employment – contract of employment – financial statements provided – financial position improved considerably – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264STATEMENT 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 15 June 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, Shanti Pathak Pty Ltd as Trustee for the Maa Durga Trust, applied for approval on 6 December 2016. The applicant nominated Mr Gurbhej Singh Brar (the nominee) in the position of Restaurant Manager. 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)(d)(i) of the Regulations because the delegate found that the applicant had not demonstrated that it had the financial capacity to offer full-time employment for at least two years to the nominated position.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 July 2018.
Mr Krishna Pathak, the sole director of the corporate trustee of the applicant Trust, appeared before the Tribunal by video conference on 10 February 2021 to give evidence and present arguments. With the applicant’s consent, the hearing was a joint hearing with the hearing of another application by the applicant.
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 registered migration agent. The representative also 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.
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) documents including:
a.Activity statements.
b.Financial statements and taxation returns.
c.A job advertisement.
d.Submissions from the applicant.
e.An Employment Contract, Organisational Charts and a position description.
f.Photographs and a diagram of the premises.
g.The Trust Deed for the Maa Durga Trust.
h.ABN information for the applicant.
i.An extract from the lease of the business premises.
j.Market salary evidence.
k.An ASIC company summary for Shanti Pathak Pty Ltd.
l.Submissions from the applicant’s accountant and representative.
m.An advice from the Queensland Chamber of Commerce and Industry, Toowoomba.
n.A recruitment report.
The applicant produced to the Tribunal documents including:
a.A copy of the delegate’s decision.
b.Further copies of documents lodged with the Department.
c.Recent activity statements.
d.Recent job advertisements and a recruitment summary.
e.Recent market salary evidence.
f.Menus and promotional material from the business.
g.A recent Employment Contract and Organisational Chart.
h.Current ASIC extracts for Shanti Pathak Pty Ltd.
i.Recent financial statements.
j.Plans for refurbishment of the business premises.
k.Submissions from the applicant, the applicant’s accountant and the representative.
Evidence presented at the hearing regarding the applicant’s operations
Mr Pathak gave evidence regarding the business operations of the applicant. He stated that he had initially opened an Indian restaurant in Caloundra in 2008, although that business was operated by a different entity to the applicant. He said that the applicant opened a restaurant in Tewantin in 2013 and later opened a restaurant in Coolum. The application discloses that the position to be filled by the nominee is at the Tewantin restaurant. Mr Pathak said that he also operated a restaurant in Maroochydore, again through a different entity to the applicant. He stated that he was the sole director and shareholder of the corporate trustee of the applicant Trust.
Mr Pathak stated that while he was studying at university in Brisbane, he had worked on a casual basis in an Indian restaurant and he set out to establish a chain of Indian restaurants on the Sunshine Coast.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal documents including:
a.Recent Australian Taxation Office activity statements 001 and 002 for the applicant.
b.A recent job advertisement by the applicant with resumes of disqualified applicants and a recruitment summary.
c.Tax returns for the 2019 and 2020 financial years.
d.Submissions from the applicant, the applicant’s accountant and representative.
e.A financial statement for the 2020 financial year for an associated company.
f.Payroll documents evidencing calculation of superannuation contributions.
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 application is compliant: r.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). 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 (r.5.19(2) and r.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 r.5.19(2) and consequently of r.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 r.5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that r.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 r.5.19(4)(a)(ii) and, for example, r.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 r.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 r.5.19(4)(a)(ii), and the requirement in relation to this application to satisfy r.5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under r.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 r.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 r.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 r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.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 r.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 r.5.19(4)(h)(ii)(B).
Having found that r.5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.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 business activity statements establish that the applicant’s ABN status is active and that the applicant is registered for GST. Mr Pathak gave evidence of the applicant’s business activities and stated that the applicant traded under its own name and not under any business name.
The applicant’s financial statements show that the applicant had received income as follows:
Period
2017/2018
2018/2019
2019/2020
Sales
$843,788
$917,067
$946,788
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 two restaurants.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour hire: r.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 Pathak 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 r.5.19(4)(c) does not apply.
Terms of employment of the visa holder: r.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 Contract of Employment dated 3 December 2020 produced to the Tribunal provides that the nominee is to be employed on a full-time basis (38 hours per week) and that the position description is Restaurant Manager. The document further provides that the agreement is to commence on the grant of the nominee’s permanent residency visa and that the employment is for a minimum of, but not limited to, two years. The agreement does not preclude the extension of employment beyond two years. Accordingly, the requirement in r.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 Department and the Tribunal disclose the following trading figures:
Year
2017/2018
2018/2019
2019/2020
Sales
$843,778
$917,067
$946,788
Cost of sales
$225,917
$227,037
$152,923
Gross profit
$617,861
$690,030
$793,865
Other revenue
$40,085
$87
$76,118
Total income
$657,946
$690,117
$869,983
Expenses
$659,285
$679,355
$806,052
Net profit/(loss)
($1,339)
$10,762
$63,931
Tax liabilities
$36,327
$39,506
$60,078
Net liabilities
$91,929
$81,167
$17,236
The delegate found that, at the time of the decision under review, the applicant had not demonstrated the financial capacity to pay the nominee the full-time salary for the nominated position for at least two years. This is not surprising, given that the most recent complete financial statements for the applicant at that time related to the 2016 financial year and disclosed a loss of $73,236 in that year. A profit and loss account for the 2017 financial year was produced to the Department and that document revealed a somewhat more promising result for the applicant, but still showed a trading loss of $14,598.
The applicant’s financial position has improved considerably from the 2016 financial year to the 2020 year. Sales increased from $711,857 to $946,788 and the applicant moved from a trading loss of $73,236 to a profit of $63,931. The net liabilities of the Trust reduced from $73,236 to $17,236.
The Tribunal expressed concerns to Mr Pathak at the hearing regarding the following aspects of the financial statements and the applicant’s capacity to employ the nominee in the position for at least two years:
a.The source of the profit in the 2020 financial year. The Tribunal noted that, although the Trust made a profit of $63,931 before tax, the income of the Trust included a Cash Flow Bonus and JobKeeper subsidies totalling $75,877 and that apart from these receipts, the Trust would have made a loss in the 2020 year. Mr Pathak acknowledged this but pointed out that the Trust had claimed a deduction of $41,544 for depreciation which did not impact on the cash flow of the business. The Tribunal also notes that the stated purpose of the COVID-19 measures was to assist employers to maintain employment.
b.The increase in the applicant’s tax liabilities. The Tribunal asked Mr Pathak to explain why the amount of these liabilities was so high. He said that the applicant had entered into a repayment agreement with the Taxation Office to pay the outstanding amount by regular instalments. After the hearing, the applicant produced a submission from its accountant regarding the payment plan and evidence of the regular payments to the Taxation Office.
c.The nature of the assets of the Trust. The Tribunal noted that the assets of the Trust according to the 2020 balance sheet included a loan of $66,201 to an associated company RK Maroochy Pty Ltd. The Tribunal questioned whether there was evidence of that company’s ability to meet that debt. After the hearing, the applicant produced financial statements of RK Maroochy Pty Ltd which revealed that the company had assets on 30 June 2020 totalling $296,054 and liabilities (apart from the debt due to the applicant and a debt payable to Mr Pathak personally) limited to $81,160.
The applicant has produced evidence that the nominee has been employed on a part-time basis since at least the month of July 2018. He was paid a salary of $26,150 plus superannuation in the 2019 financial year and $25,268 plus superannuation in the 2020 financial year. The salary payable to him for full-time employment under the Employment Contract dated December 2020 is $53,900 per annum plus superannuation. Although the employment of the nominee on a full-time basis will increase the total wages to be paid by the applicant, the Tribunal has regard to the increased profitability of the Trust in the 2020 financial year. 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 r.5.19(4)(d)(i) is met.
Accordingly, as the requirements of both r.5.19(4)(d)(i) and (ii) are met, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.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 2020 Employment Contract provides that the applicant will pay to the nominee a salary of $53,900 per annum for a 38-hour week plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992. The nominee is entitled to leave in accordance with the Restaurant Industry Award and the National Employment Standards.
The applicant produced to the Tribunal online evidence from opencolleges.edu.au that the average wage payable to a Restaurant Manager in Australia ranged between $43,000 and $62,000 per annum and from PayScale that the average salary for this position ranged between $48,000 and $69,000 per annum with an average of $55,930 per annum. The applicant also produced evidence in the form of job advertisements for the position on the Sunshine Coast with advertised salaries ranging between $55,000 and $80,000. The salary to be paid to the nominee is slightly below the ranges of the advertised positions, but within the ranges indicated by Open Colleges and PayScale.
The Tribunal also has had regard to the certificate of the Regional Certifying Body (RCB), being the Form 1404 issued by the Queensland Chamber of Commerce and Industry, Toowoomba dated 30 November 2016, that the nomination satisfies the requirements set out in r.5.19(4)(e) and r.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 r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
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 r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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 r.5.19(4)(g) are met.
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 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
The recent Employment Contract provides that the nominee is to be employed at 86/84 Poinciana Avenue, Tewantin, Queensland, 4565, a location in regional Australia according to the relevant instrument. The location of the business is established by the evidence before the Tribunal. Based on the evidence presented, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of r.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
Mr Pathak gave evidence regarding the need for the applicant to employ the nominee as a paid employee to work in the position at the location. He stated that he needed a full-time manager to work in the Tewantin business so that it could operate functionally. He said that he wished to concentrate on all of the businesses operated by the applicant, and not on one only. He confirmed in the applicant’s submission after the hearing that the nominee had been working in the position on a part-time basis recently and that he, Mr Pathak, had been required to attend to the management of the business, with assistance from the chef, when the nominee was not working. He said that he could not continue to fill this role on a part-time basis and that the nominee’s employment was to be full-time.
The financial statements provided by the applicant contain a divisional trading account for the Tewantin restaurant. The sales in the 2020 financial year were $442,479 with a net profit of $42,606. The applicant produced plans for refurbishment of the restaurant. Mr Pathak stated that these plans were dependent on the successful nomination of the nominee to the position of Restaurant Manager and that the applicant had the financial capacity to complete the refurbishment works.
Mr Pathak stated that he visited the premises approximately once per week to meet with the nominee to discuss management issues. The Tribunal is satisfied that Mr Pathak does not personally manage the operations of the business and that a restaurant business such as that operated by the applicant at Tewantin has a genuine need to employ a Restaurant Manager.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 41 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 r.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 provided to the Tribunal evidence of job advertisements by the applicant for the positions of Restaurant Manager and Cook over an extended period of time. The most recent advertising for the Restaurant Manager position was conducted in December 2020 and January 2021. Mr Pathak stated at the hearing that seven or eight applications were received, but that the applicants were either based overseas or were not qualified for the position. After the hearing, the applicant provided resumes of the disqualified applicants.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 41 above. 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, r.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 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 duties and responsibilities of Restaurant Manager set out in the position description attached to the Employment Contract are:
·Responsible for the management of the store whilst on duty, including the coordination and overseeing of the different areas of the restaurant.
·Works with other team members including Head Chef, Sous Chef, Wait Staff etc. in the performance of duties.
·Customer service including making reservations, greeting guests and assisting in the taking of orders; and communicating with customers to ensure satisfaction with meals and service.
·Effective communication with the owner of the business and other managers to ensure successful flow of business operations.
·Be able to plan menus in consultation with Chefs and Cooks.
·Plan and organise special functions when required.
·Writing of rosters and shift planning.
·Able to perform and delegate all key duties of other positions.
·Be on call for any emergencies and any unexpected store or staffing requirements
·Accurately record sales and banking, investigate, explain, and report any discrepancies to business owner.
·Recruit, induct and train & exits efficient and friendly employees in conjunction with the business, especially front of house staff.
·Maintain stock control.
·Negotiate with suppliers.
·Perform administrative duties.
Mr Pathak gave evidence of the tasks performed by the nominee in the position. He said that he, Mr Pathak, planned the menu, based on recommendations from the manager and head chef. He said that the menu was changed on a regular basis. He said that the manager was responsible for ordering supplies for the restaurant after consultation with the head chef. In relation to staffing, he stated that the Restaurant Manager filled casual positions without reference to him personally, but that the manager would usually consult him regarding the appointment of a senior position such as a cook. He said that the manager was responsible for budgeting because he was in attendance at the premises and knew the needs of the business. He said the manager set targets quarterly based on turnover and that he controlled costs such as the purchase of product and staffing costs.
Based on all the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Restaurant Manager specified by the Minister in the relevant instrument, being IMMI 17/058 and that the occupation is applicable to the nominee. Accordingly, the requirements of r.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 51 above, the Tribunal is satisfied that the business operated by the applicant is located at 86/84 Poinciana Avenue, Tewantin, Queensland, 4565, which is the same location as the address of the position to be filled. Accordingly, the requirements of r.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 r.5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 41 above was submitted to the Department. Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, having regard to the above findings, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Remedies
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Jurisdiction
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