Evidence
Evidence Before The Court
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Genuine need for employment – regs 5.19(9)(c) and (d) Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine. The review applicant nominated the position/occupation of Hair or Beauty Salon Manager (ANZSCO 142114). On 11 September 2019, the delegate refused the application because the applicant did not meet r.5.19(9)(c) because the application for approval did not identify a need for the identified person to be employed in the position, under the direct control of the nominator. The delegate noted ‘it is reasonable to consider that a hair or beauty salon manager would be employed in a full time capacity for a period of at least two years by a hair or beauty salon, not an IT business. The applicant has not demonstrated how a hair or beauty salon manager fits into their organisation of four staff, on a full time basis for a period of at least two years on a base salary of $56,000.00, in an IT service provider business.’ On 24 October 2022, the Tribunal invited the applicant to provide information including the need to employ the nominee in the nominated position. As noted above, no response has been received from the applicant to the Tribunal’s invitation to provide information. The applicant has not provided current information about the need to employ the nominee to work in the nominated position. As such the Tribunal is unable to be satisfied at the time of this decision, that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator. Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(c) is met. Accordingly, reg 5.19(4)(f) is not met. As the Tribunal has found that the applicant has not met r.5.19(4)(f), it is not required to consider the rest of the requirements as set out in rr.5.19(4) and (9). For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.decision The Tribunal affirms the decision under review to refuse the nomination.Karen McNamaraMemberAttachment – extracts from the migration regulations 19945.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visaApplication(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.(2)The application must:(a)be made in accordance with approved form 1395 (Internet); and(b)identify the position; and(c)identify a person (the identified person) in relation to the position; and(d)identify an occupation in relation to the position; and(e)identify the subclass and stream to which the nomination relates, which must be one of the following:(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and(f)be accompanied by the fee mentioned in regulation 5.37; and(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and(g)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.Approval of nomination(3)The Minister must, in writing:(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or(b)otherwise—refuse to approve the nomination.Requirements for approval—general(4)The requirements to be met for the nomination to be approved are as follows:(a)the application is made in accordance with subregulation (2);(b)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;(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:(i)hold a licence of a particular kind; or(ii)hold registration of a particular kind; or(iii)be a member (or a member of a particular kind) of a particular professional body;to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.…Direct Entry stream—additional requirements for approval(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:(a)the nominator is actively and lawfully operating a business in Australia;(b)if the nominator’s business activities include activities related 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;(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:(i)paragraph 2.72(15)(a) did not apply; and(ii)references to the nominee were references to the identified person; and(iii)references to the person were references to the nominator;(i)either:(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or(ii)it is reasonable to disregard any such information;(j)the requirements set out in subregulation (10) or (12) are met.Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream(10)The requirements of this subregulation are as follows:(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (11); and(ii)in force at the time the application is made;(b)the occupation applies to the identified person in accordance with that instrument.(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream(12)The requirements of this subregulation are as follows:(a)the position is located at a place in regional Australia;(b)the business operated by the nominator is located at that place;(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (13); and(ii)as in force at the time the application is made;(e)the occupation applies to the identified person in accordance with that instrument;(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:(i)whether the identified person would be paid at least the annual market salary rate for the occupation;(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(g)the body must:(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and(ii)be located in the State or Territory in which the position is located; and(iii)have responsibility for the local area in which the position is located.(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.…Meaning of regional Australia(16)In this regulation:regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.
Decision
Reasons for decision
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.decision The Tribunal affirms the decision under review to refuse the nomination.Karen McNamaraMemberAttachment – extracts from the migration regulations 19945.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visaApplication(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.(2)The application must:(a)be made in accordance with approved form 1395 (Internet); and(b)identify the position; and(c)identify a person (the identified person) in relation to the position; and(d)identify an occupation in relation to the position; and(e)identify the subclass and stream to which the nomination relates, which must be one of the following:(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and(f)be accompanied by the fee mentioned in regulation 5.37; and(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and(g)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.Approval of nomination(3)The Minister must, in writing:(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or(b)otherwise—refuse to approve the nomination.Requirements for approval—general(4)The requirements to be met for the nomination to be approved are as follows:(a)the application is made in accordance with subregulation (2);(b)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;(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:(i)hold a licence of a particular kind; or(ii)hold registration of a particular kind; or(iii)be a member (or a member of a particular kind) of a particular professional body;to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.…Direct Entry stream—additional requirements for approval(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:(a)the nominator is actively and lawfully operating a business in Australia;(b)if the nominator’s business activities include activities related 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;(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:(i)paragraph 2.72(15)(a) did not apply; and(ii)references to the nominee were references to the identified person; and(iii)references to the person were references to the nominator;(i)either:(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or(ii)it is reasonable to disregard any such information;(j)the requirements set out in subregulation (10) or (12) are met.Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream(10)The requirements of this subregulation are as follows:(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (11); and(ii)in force at the time the application is made;(b)the occupation applies to the identified person in accordance with that instrument.(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream(12)The requirements of this subregulation are as follows:(a)the position is located at a place in regional Australia;(b)the business operated by the nominator is located at that place;(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (13); and(ii)as in force at the time the application is made;(e)the occupation applies to the identified person in accordance with that instrument;(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:(i)whether the identified person would be paid at least the annual market salary rate for the occupation;(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(g)the body must:(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and(ii)be located in the State or Territory in which the position is located; and(iii)have responsibility for the local area in which the position is located.(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.…Meaning of regional Australia(16)In this regulation:regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.
Ratio Decidendi
Legal Principle Established
The Tribunal affirms the decision under review to refuse the nomination.Karen McNamaraMemberAttachment – extracts from the migration regulations 19945.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visaApplication(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.(2)The application must:(a)be made in accordance with approved form 1395 (Internet); and(b)identify the position; and(c)identify a person (the identified person) in relation to the position; and(d)identify an occupation in relation to the position; and(e)identify the subclass and stream to which the nomination relates, which must be one of the following:(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and(f)be accompanied by the fee mentioned in regulation 5.37; and(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and(g)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.Approval of nomination(3)The Minister must, in writing:(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or(b)otherwise—refuse to approve the nomination.Requirements for approval—general(4)The requirements to be met for the nomination to be approved are as follows:(a)the application is made in accordance with subregulation (2);(b)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;(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:(i)hold a licence of a particular kind; or(ii)hold registration of a particular kind; or(iii)be a member (or a member of a particular kind) of a particular professional body;to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.…Direct Entry stream—additional requirements for approval(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:(a)the nominator is actively and lawfully operating a business in Australia;(b)if the nominator’s business activities include activities related 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;(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:(i)paragraph 2.72(15)(a) did not apply; and(ii)references to the nominee were references to the identified person; and(iii)references to the person were references to the nominator;(i)either:(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or(ii)it is reasonable to disregard any such information;(j)the requirements set out in subregulation (10) or (12) are met.Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream(10)The requirements of this subregulation are as follows:(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (11); and(ii)in force at the time the application is made;(b)the occupation applies to the identified person in accordance with that instrument.(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream(12)The requirements of this subregulation are as follows:(a)the position is located at a place in regional Australia;(b)the business operated by the nominator is located at that place;(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (13); and(ii)as in force at the time the application is made;(e)the occupation applies to the identified person in accordance with that instrument;(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:(i)whether the identified person would be paid at least the annual market salary rate for the occupation;(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(g)the body must:(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and(ii)be located in the State or Territory in which the position is located; and(iii)have responsibility for the local area in which the position is located.(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.…Meaning of regional Australia(16)In this regulation:regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.