Shevaroys Pty Ltd (Migration)

Shevaroys Pty Ltd (Migration) [2023] AATA 1669 (7 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shevaroys Pty Ltd
REPRESENTATIVE:  Mr Claudio Garzini (MARN: 1803676)
CASE NUMBER:  1918717
HOME AFFAIRS REFERENCE(S):          BCC2017/4246797
MEMBER:Terrence Baxter
DATE:7 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 07 June 2023 at 9:13am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – accommodation manager – genuine need to employ nominee in position – joint hearing of nomination and visa reviews – extensive documentation and consistent oral evidence from director and nominee – director living at a distance and expansion of nominee’s role – nominee’s skills and experience – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Singh v MIBP [2017] FCAFC 105
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 2 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).
The applicant, Shevaroys Pty Ltd, applied for approval on 13 November 2017. The applicant nominated Mr Ezequiel Fernandez Aguirre (the nominee) in the position of Accommodation Manager. Mr Brian Spitteler, a director of the applicant, has been involved in the tourism and hospitality industries in Western Australia since 1978. The applicant has provided, either directly or as a part owner of related entities, tourist accommodation in the Margaret River region since 2001. The applicant has also been involved in other tourism-related activities since 2018. The applicant has employed the nominee since November 2017.
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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found that the applicant had not demonstrated that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position under the applicant’s direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 11 July 2019.
Mr Spitteler appeared before the Tribunal by video conference on 28 February 2023 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 Tribunal also received oral evidence from the nominee by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. 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 initially represented in relation to the review by its registered migration agent, Mrs Ana Julia Figueiredo Carusi of Seven Migration, from 11 July 2019 to 3 August 2022. Mr Claudio Garzini of Seven Migration represented the applicant in relation to the review from 3 August 2022. Mr Aaron Chan of Seven Migration attended the Tribunal hearing by video conference as the applicant’s representative at the hearing.
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 job advertisement of the position.
b.An employment contract of the nominee dated 24 November 2017.
c.An organisational chart.
d.Market salary evidence.
e.A position description.
f.Activity statements of the applicant for the period from July 2016 to June 2017 and from April 2018 to September 2018.
g.Income tax returns of the applicant for the 2016 and 2017 financial years.
h.Financial reports of the applicant for the 2016 and 2017 financial years.
i.A current ABN Lookup form of the applicant.
j.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB), the Government of Western Australia Department of Training and Workforce Development, dated 12 December 2017.
k.A declaration from Mr Spitteler.
l.Payslips of the nominee for periods in April and May 2019.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.An ASIC current and historical company extract of the applicant.
c.Financial statements of the applicant for the 2020 and 2021 financial years.
d.A submission from the applicant's representative dated 2 September 2022.
e.Activity statements of the applicant for the period from April 2020 to March 2022.
f.An ASIC company statement of the applicant and an invoice dated 26 November 2021.
g.Income tax returns of the applicant for the 2020 and 2021 financial years.
h.An updated organisational chart.
i.An excel spreadsheet titled AMR Sales Report.
j.Evidence of the nominee completing tasks required of the position.
k.A payroll summary of the nominee for the 2022 financial year.
l.Payslips of the nominee.
m.Submission from the applicant dated 3 December 2017 and 1 September 2022.
n.Copies of various documents provided to the Department.
Evidence presented prior to and at the hearing regarding the applicant’s operations
Mr Spitteler and his wife, Catherine Ann Spitteler, are the sole shareholders of the applicant company. They, together with the applicant and an associated company, One Destiny Pty Ltd, are the shareholders of Bushland Cottages Pty Ltd which purchased tourist accommodation cottages in 2001 (Bussells Bushland Cottages) and 2003 (Peppermint Brook Cottages). Mr and Mrs Spitteler and the applicant hold 47.96% of the units of a Unit Trust which purchased further accommodation premises in 2009 (Margaret River Hideaway and Farmstay). The applicant acquired two further accommodation cottages in 2010 and 2016 and, in 2017, acquired a 50% interest in a joint venture which purchased a further accommodation cottage. The total holding comprised 30 units of accommodation with 65 bedrooms.
The applicant’s wholly owned subsidiary, All About Margaret River Pty Ltd, established a touring business based in the Margaret River region in 2018. Another wholly owned subsidiary Margaret River Ventures Pty Ltd owns a commercial property in Margaret River.
The accommodation cottages purchased by the applicant in 2010 and 2016 and by the related joint venture in 2017 were sold in 2022. The cottages retained by Bushland Cottages Pty Ltd and the related Unit Trust comprise 25 accommodation units with 50 bedrooms.
The applicant has employed the nominee on a full-time basis since November 2017.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A submission from the representative dated 14 March 2023.
b.An ASIC current and historical extract of Margaret River Ventures Pty Ltd ACN 615 567 603.
c.An ASIC current and historical extract of Bushland Cottages Pty Ltd ACN 009 139 477.
d.An ASIC current and historical extract of All About Margaret River Pty Ltd ACN 602 897 236.
e.Market salary evidence.
f.Activity statements of the applicant for the period from July to December 2022.
g.A record of activity statements submitted to the Australian Taxation Office (ATO).
h.A record of tax return lodgements submitted to the ATO and of the applicant’s current income tax balance.
i.A financial projections table of the applicant for the 2023 to 2025 financial years.
j.Financial statements of the applicant for the 2022 financial year.
k.A tax return of the applicant for the 2022 financial year.
l.A Diploma of Hospitality Management awarded to the nominee accompanied by an academic transcript and a letter of completion.
m.An invoice dated 1 March 2021 submitted by the nominee to All About Margaret River Pty Ltd.
n.A submission from the applicant dated 10 March 2023.
o.Notices of taxation assessment of the nominee for the 2019, 2020 and 2021 financial years.
p.An amendment of the employment contract dated 13 March 2023.
q.Payslips of the nominee.
r.An employment reference by a former employer of the nominee dated 27 September 2017.
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 Migration Act 1958 (Cth). 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.
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 nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) 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 an identified person as 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 a paid employee 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 the person identified in the application as 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 June 2023).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (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 regs 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 Accommodation Manager. On page 5 of the application, the nominee is identified as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ an identified person as a paid employee in the position of Accommodation 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 the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
As regs 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 has provided evidence from ASIC that it is registered, that its ABN is active and that it is registered for GST. The applicant has provided financial statements and taxation returns up to the 2022 financial year and business activity statements to the month of December 2022.
The applicant’s business activity statements reveal that it recorded sales in the 2021 and 2022 financial years of $403,134 and $2,456,551 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 a tourism and hospitality business.
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 Spitteler 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 amended employment contract dated 24 November 2017 provides that the position is full-time, permanent and ongoing for at least two years from the date of approval of the nominee’s Subclass 187 visa. The position is Accommodation Manager. The contract does not exclude the possibility of extension. 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 salary payable to the nominee under the employment contract is $56,000 per annum plus superannuation.
The applicant’s business is profitable. The applicant made profits of $147,162 and $673,658 in the 2021 and 2022 financial years respectively. According to its 2022 balance sheet, the applicant had net assets of $2,538,034 at the end of that financial year and Mr Spitteler stated at the hearing that the applicant’s net assets substantially exceeded that figure because the assets on the balance sheet were recorded at book value and not present market value. The applicant paid a salary to the nominee of $56,258 in the 2022 financial year and has paid him a salary of $54,002.41 in the period from 1 July 2022 to 20 February 2023.
The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Accommodation Manager in accordance with the amended 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, 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 applicant does not have an Australian citizen or permanent resident performing equivalent work at the nominee’s workplace. The salary to be paid by the applicant to the nominee is $56,000 per annum. The applicant is entitled to leave as specified in the employment contract. The applicant is required to make superannuation payments on behalf of the nominee in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth).
The applicant provided to the Tribunal evidence from the platform PayScale that the average Hospitality Manager salary in Perth, Western Australia ranges between $53,000 and $62,000 per annum with an average of $57,456 per annum. The applicant also provided job advertisements for the positions of Accommodation Services Manager and Motel Manager in Perth and Bunbury with advertised salaries of $55,000 to $65,000 per annum.
The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by the Western Australian Department of Training and Workforce Development, dated 12 December 2017, 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 regs 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 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, 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and an RCB has advised the Minister about certain matters relating to the position.
The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 6285 (Margaret River, Western Australia). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at Margaret River, Western Australia 6285. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
As recorded in the preceding paragraph, the Tribunal finds that the position is located at Margaret River, Western Australia 6285. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control
Based on the information provided to the Department, the delegate was not satisfied that this requirement had been met. The delegate noted that no statement of genuine need or job description had been provided by the applicant.
Although the applicant is not the outright owner of the accommodation cottages described in paragraph 14 of these Reasons, the applicant is responsible for the management of those cottages and receives management fees for that service.
At the time of the nomination, it was intended that the nominee would fill the role of Accommodation Manager at only one of the cottages managed by the applicant. The nominee’s role has subsequently been expanded to cover management of the three cottages.
Mr Spitteler was asked at the hearing why the applicant needed to employ the nominee as Accommodation Manager. He said that, although he had considerable experience in business, his ability with technology was not advanced and he had experienced technical issues with controlling the distribution of the accommodation services offered by the applicant. He said that he had employed others on a part-time basis to assist him with management, but that those employees had failed him badly. He said that, as a result, the occupancy rate of the cottages had been held back.
Mr Spitteler described the tasks performed by the nominee in the position. He said that he personally resided in Perth, which is located approximately 270 kilometres from Margaret River, and that he travelled to Margaret River once every two to three weeks. He said that he could not personally fill the management role being performed by the nominee. He said that, although on-site supervisors were employed at each of the three accommodation cottages, their duties were different to that of the position filled by the nominee.
This requirement involves a consideration of the meaning of the term “to work in the position” (emphasis by the Tribunal). “Position” is not defined in the Regulations, but the term has been judicially considered. In Singh v Minister for Immigration & Border Protection & Anor [2017] FCAFC 105, the Court considered the meaning of the term “position” in the context of an application for a Subclass 187 visa. The Court found that the “position” is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1).
In the present matter, the nominee was originally employed to manage one of the accommodation cottages controlled by the applicant. His role has been expanded to manage three accommodation cottages and the nominee is also involved in the management of the touring company All About Margaret River Pty Ltd, which is wholly owned by the applicant. Mr Spitteler has confirmed that the vast majority of the applicant’s income is derived from the accommodation cottages and that the majority of the nominee’s tasks relate to those cottages. The Tribunal finds that there has been no change in the nominated position.
The Tribunal notes that the nominee has been employed in the position of Accommodation Manager since November 2017. The Tribunal has also had regard to the certificate of the RCB referred to in paragraph 40 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Accommodation 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 position was advertised on the platform Seek in November 2017. Although there were 21 applications to fill the position, the applications did not include any Australian citizen or Australian permanent resident who possessed the required qualifications to fill the position. The nominee was not personally known to Mr Spitteler prior to his responding to an advertisement posted by the applicant in September 2017.
The Tribunal also places weight on the certificate of the RCB referred to in paragraph 40 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, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulations 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 is Accommodation and Hospitality Managers nec, which has the six‑digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 141999 and which is specified in the relevant instrument, being IMMI 17/058. The specification in the ANZSCO for the Minor Group 141 – Accommodation and Hospitality Managers provides that Accommodation and Hospitality Managers organise and control the operations of establishments which provide accommodation and hospitality services. Accommodation and Hospitality Managers nec is an occupation within Unit Group 1419, which is included in Minor Group 141.
Mr Spitteler described the tasks to be performed by the nominee as follows:
a.Managing the separate websites for the three accommodation cottages.
b.Managing the accommodation rates for the cottages depending on seasonality and the number of nights of accommodation required.
c.Liaising with the supervisors of the three cottages and inspecting the cottages regularly.
d.Marketing the accommodation online and with travel agents to maximise occupancy and income for the applicant.
e.Through the company All About Margaret River Pty Ltd, establishing tour rates, entry of rates through the distribution system, establishing itineraries, taking bookings, communicating with customers and booking venues to be visited.
The nominee, who was not present in the hearing during the evidence of Mr Spitteler, gave evidence regarding the tasks presently performed by him in the position. His evidence was consistent with the evidence of Mr Spitteler and expanded on his relationship with the property supervisors.
The Tribunal is satisfied that the tasks to be performed by the nominee correspond to the tasks of the occupation of Accommodation and Hospitality Manager. According to the ANZSCO, the occupation is a Skill Level 2 occupation, requiring that the nominee holds an AQF Associate Degree, Advanced Diploma or Diploma. Evidence has been provided to the Tribunal that the nominee holds a Diploma of Hospitality Management. The Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(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 50 above, the Tribunal is satisfied that the business operated by the applicant is located at Margaret River, Western Australia 6285, 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 regs 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 40 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 an identified person, as 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).

[2023] AATA 1669

7 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies