SP&A GROUP PTY LTD (Migration)

SP&A GROUP PTY LTD (Migration) [2024] AATA 96 (19 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SP&A GROUP PTY LTD
REPRESENTATIVE:  Ms Sharon Harris (MARN: 9501060)
CASE NUMBER:  2003234
HOME AFFAIRS REFERENCE(S):          BCC2019/5373799
MEMBER:Wan Shum
DATE:19 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 January 2024 at 11:40am
CATCHWORDS
MIGRATION – application for nomination of position – direct entry nomination stream – office manager – genuine need for position – nominee and husband directors of nominator – growth of business and nominee’s duties – no skills shortage for this occupation but local advertising found no suitable candidates – position not created to achieve migration outcome – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth),
Migration Regulations 1994 (Cth), r 5.19(4), (9)(d), (12)(d), (e)
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 6 February 2020 to reject an application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the application for approval of a nomination was made by SP&A Group Pty Ltd (the nominator) on 25 October 2019 for the position of Office Manager under the Direct Entry nomination stream. Sapir Paz Sharabi (the nominee) was identified as the person the nominator wished to employ for the position. The nominee lodged a Subclass 187 visa application in respect of this nomination and included Avishay Sharabi as a member of her family unit. They are the Directors of the nominator.
The delegate did not approve the application on the basis that the nomination did not satisfy reg 5.19(9)(d) of the Regulations because the delegate was not satisfied that the application identified a genuine need for the nominated person to be employed under the direct control of the nominator in the position of Office Manager. As a consequence, the nominee’s visa was refused because there was no approved nomination.
The nominator and the nominee have sought review of these decisions. All parties are represented in relation to the review by the same registered migration agent named on the front page of this decision.
Avishay Sharabi, in his capacity as a Director, appeared on behalf of the nominator by videoconference using Microsoft Teams at a hearing on 4 November 2023 to give evidence and present arguments in relation to this application. The nominee also gave evidence by videoconference from the same location. The representative was present throughout the Tribunal hearing at another location.
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. There are general requirements which must be met and are set out in reg 5.19(4) and also stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision.
The nominator was incorporated on 11 September 2019 and operates a retail business selling skincare products in kiosks at shopping centres located in regional New South Wales (NSW). According to ASIC records, the nominator (ABN 91636132422) was registered on 11 September 2019 as an Australian Proprietary Company Limited by Shares. The Directors of the company are Avishay Sharabi and Sapir Paz Sharabi, the nominee, who each hold 50% of the ordinary shares in the entity.
The application for the nomination the subject of this review was made under the Direct Entry nomination stream. The completed application form identified the stream type as ‘Regional Sponsored Migration Scheme – visa subclass 187’. The work location was entered as having the postcode of 2259; the position details were entered as the occupation of Office Manager with ANZSCO code 512111; and the industry as ‘Retail Trade’. The trading name was entered as SP&A COSMETICS. Sapir Paz Sharabi is the person, female, identified for the nominated position and Avishay Sharabi, male, was included as a member of her family unit on the basis of being her spouse/de facto partner.
The business operations were described on the form as:
SALES OF ISRAELI KEDMA COSMETICS IN REGIONAL NSW TOWNS, SKINCARE PRODUCTS-CONTAINING VITAMINS & MINERALS FROM THE DEAD SEA IN ISRAEL. THE BUZ WAS FIRST REGISTERED AS A PARTNERSHIP IN 09/2017. ON 11.9.19, PARTNERS SETUP A COMPANY, SP&A GROUP PTY LTD, AS A VEHICLE TO OPERATE THE BUSINESS INSTEAD.
The Regional Development Australia Central Coast, which is a specified regional certifying body (RCB) located in the same State or Territory and with responsibility for the local area in which the position is located, advised the Minister on 15 January 2020 that the nomination did not satisfy the requirements because the RCB did not consider that there is a skills shortage in the Central Coast of NSW for the nominated position which was given the job title of “business office manager” in the application.
During the hearing, Mr Sharabi explained that he and Mrs Sharabi had come to Australia on student visas. In 2017, they and Mrs Sharabi’s sister came up with an idea to sell skincare products from their car and trailer so they could make some money while travelling in Australia. They would build cabinets and a kiosk and move locations every 2 to 3 weeks. When they were working on the Central Coast of NSW the number of sales increased. After a year, they decided to settle on the Central Coast. At that time they operated from one kiosk, which he explained is essentially a site in a shopping centre that is not a permanent shop. The first location where they opened was Erina Fair which is a shopping centre in Gosford. They started off as a very small business and later rented a four-bedroom house at Hamlyn Terrace, and use one room as an office. In 2019, on the advice of their accountant, they changed the business structure from a partnership to a company. As a consequence of the COVID-19 pandemic, they lost a few staff and they decided to switch to an Australian product “Origani” in the middle of 2020 as there were supply issues and increased transport costs with the Dead Sea product that they had been selling. They now purchase directly from the manufacturer/wholesaler in Australia.
Mr Sharabi stated that as the Chief Executive Officer he is responsible for dealing with shopping centres and negotiating rates and sourcing locations; looking after staff, training and working with staff on-site; bringing inventory to the difference locations every 2 to 3 days; how to grow the business day-to-day and planning for the future. He described Mrs Sharabi’s responsibilities as the administrative tasks which include day-to-day bookkeeping and communications with their external accountant in respect of Business Activity Statements (BAS); quarterly reports and tax returns; ordering product from supplier; inventory. He said that every day, the managers of the kiosks bring sales receipts and cash in envelops to her and she deposits the money. Based on the sales for the day, she will then prepare the roster. She is also responsible for hiring by placing advertisements and interviewing potential sales ambassadors. She responds to customer queries. Mrs Sharabi spends most of her time in the office, email and phone calls and does not really need to go out to the kiosks. In terms of employees, these include a kiosk manager and “sales ambassadors” who are salespersons that they train to sell the skin care products which might involve applying the products on the skin of potential customers. They currently have 8 sales ambassadors and one kiosk manager at two kiosk locations. Of these, some are subcontractors and some are employees of the Company. They receive a base daily salary plus a bonus plus commission if they reach a minimum sales target which was above minimum wages, although he was unable to confirm which Fairwork Award applied.
Mrs Sharabi also gave evidence that she does the bookkeeping using XERO software and speaks to the accountant on a weekly basis; she is responsible for ordering inventory from the supplier and monitors stock. She determines what is needed the next day at the kiosk in terms of product and all equipment after checking the envelops of daily sales from the kiosks which are delivered by the kiosk manager. She arranges the work rosters and the manager informs the others. She maintains the website and responds to any enquiries from the website or by mail. She purchases office equipment such as notepads, toner, markers and for the kiosks she orders envelops, paper towels, hand sanitiser and business cards. She arranges accommodation for staff when the kiosks are located further away and require travel. When they need to recruit more sales ambassadors, she posts the advertisement, interviews, and checks if the applicants are suitable. She arranges insurance and pays invoices from the shopping centres and suppliers. She created the Company’s safety plan protocol for COVID-19 and ensures it is updated and reviewed regularly. Payroll – checks the hours worked every week or fortnight depending on the agreement with the employee/subcontractor. They currently engage 5 subcontractors. The employees are paid base salary per day and receive commission, which is a percentage of sales, but they are guaranteed $23 per hour. It was decided to implement a base plus commission arrangement as it helps with motivation. For casual employees, most of them study so the regularity of their work depends on the need for extra sales people and she will call or text them when needed.
In terms of the nominated position, Mr Sharabi said that they had advertised four times in the past four years but could not find any suitable candidates. He stated that they need an office manager in the Company as they want to expand and open more locations.
On review, the submission from the representative is that it is a genuine position within the business and that the skill shortage in regional Australia is “well documented”, but other than one article from VERTO, the articles and submissions provided referred to a shortage across Australia or NSW and was not specifically regarding regional areas of NSW. None of the material provided specifically refer to the occupation of Office Manager.
In support of the submission regarding skills shortage in regional Australia it was submitted that it:
was evidenced with Federal Government waiver of DHA fees for ‘backpackers’ (417/462 visas) and international students and introduction of the COVID-408 VAC-free visa and new pathways to 186 from 482/457 short term streams - so to fill the regional demand for workers.
It appears that the submission is referring to measures that were introduced to address the impact of COVID-19 pandemic and the recovery of the Australian economy. However, the Tribunal notes that some of the implemented changes have since ceased or are no longer available (such as for Subclass 408 visa applicants)[1] such that they were temporary in nature. The “new” pathways to the permanent visa for the Temporary Skills shortage (TSS) visas (ie the Subclass 482/457 visas) apply to all TSS visa holders and not only to regionally based employers/visa holders[2] so does not of itself support the assertion that these measures were “to fill the regional demand for workers”. The expanded pathways are not relevant in this case as the nominee has not applied for a Subclass 186 visa under the Temporary Residence Transition stream but under the Direct Entry stream. In any case, the Regional Development Australia Central Coast advised that the RCB did not consider that there is a skills shortage for this occupation in the Central Coast of NSW on 15 January 2020. The latest information from the Jobs and Skills Atlas[3] reflects that there is a regional skills shortage for sales persons and retail managers which appears to reflect a regional skills shortage within the retail industry.
[1] Refer Migration (COVID-19 Pandemic event for Temporary Activity (Subclass 408) visa) Amendment Instrument (LIN 23/061) 2023.
[2] The Migration Amendment (Expanding Access to Temporary Residence Transition Stream)
[3] >
It was admitted that the nominee does in fact own the business/company but it was submitted that “there is sufficient evidence to prove this position is genuine and has NOT BEEN CREATED TO ACHIEVE A MIGRATION OUTCOME. On the contrary, this business has created employment for many people; increased demand in Australian products; provided rental income to shopping centres; and most importantly provided products to customers in very regional locations whom would not have access to such products. The benefit this business has brought to Australia and Australians is clear.”
The business utilises ‘kiosks’ in shopping centres based in regional NSW which are not usually permanent in nature and copies of agreements were provided following the hearing which reflect short lease periods of 2 to 3 months. A list of 23 locations were provided where the nominator claims to have previously operated a kiosk along with a calendar printout with dates and shopping centres at which the business was operating. Photographs were also provided which show the nature of the business in various locations. The Company was offered a 5-year lease for a kiosk at Charlestown Square on 4 May 2023 to commence from 26 February 2024, which has been signed by Avishay Sharabi.
It was submitted that the nominator is in a strong financial position to offer employment for at least 2 years with turnover increased from $592,230 in financial year ending 2022 to $1,799,613 in FYE 2023 while profit increased from $149,369 to $263,616 for the same periods.
In terms of the nominator’s claimed inability to locate a local to fill this position this was said to be because of the serious labour shortage across Australia, it was submitted that the nominator had advertised the position “to prove to the Member their inability to locate an Australian for the role. They did advertise in 2022 and not one application was received”. However, the 2023 advertisment reflects that two applications were received, one of whom was located overseas and the other was interviewed but did not have relevant experience.
Further submissions address whether the position is that of an Office Manager. This is relevant as regulation 5.19(12) contains a number of requirements including that the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
The Tribunal has considered the evidence below.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position;
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·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 s 245AR(1) of the Act.
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
The information before the Tribunal is that the application was made on 25 October 2019 in accordance with approved form 1395 (Internet) as required, and was accompanied by the fee mentioned in reg 5.37. The application identified:
·the position of Office Manager;
·the occupation of Office Manager in relation to the position;
·Ms Sapir Sharabi in relation to the position; and
·Subclass 187 and the Direct Entry stream to which the nomination relates.
The nominator’s response on the form to the question seeking certification that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) was ‘yes’.
Given the above, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either 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. The Tribunal is not aware of any adverse information known to Immigration about the nominator or a person associated with the nominator, and the requirements of reg 5.19(4)(b) are met.
Mandatory licensing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or 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.
In this instance, the relevant State or Territory is New South Wales and the relevant occupation is Office Manager. Having regard to the ANZSCO description and other information before the Tribunal, there is nothing to indicate that licensing/registration or membership requirements of a professional body are required to perform the tasks for the nominated occupation.
Given the above findings, the requirements of reg 5.19(4)(c) are met.
Satisfactory compliance with employment laws – reg 5.19(4)(d)

Regulation 5.19(4)(d) requires that 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.
There is nothing before the Tribunal which indicates that the applicant has not complied with employment laws and it appears 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.
Given the above findings, reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full. The Tribunal is not aware of any debts payable by the nominator under s 140ZO.
This means that the requirements of reg 5.19(4)(da) are met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia. Based on financial statements, BAS and tax returns, as well as oral evidence, the Tribunal finds that the nominator is actively and lawfully operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
There is no evidence that the nominator is involved in labour hire activities and reg 5.19(9)(b) does not apply.
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 application identified a need for the nominee to be employed in the position under the nominator’s direct control. In terms of whether the need is genuine, the delegate did not consider that there was a genuine need and refused the nomination on this basis.
A concern that arises in this case in terms of employing a person for the position is that Ms Sapir Sharabi is one of the Directors of the company. Avishay Sharabi is the second named visa applicant and is the other Director. The Tribunal has reservations about whether the need is genuine.
Having considered all the evidence, the Tribunal accepts that the business requires various administrative tasks to be carried out which include ordering; bookkeeping; payroll; advertising, interviewing and on-boarding sales ambassadors; preparing rosters and arranging travel and accommodation for sales team if the kiosk is located away from the Company-offered accommodation. The Tribunal accepts that the business receives customer enquiries made by email or through their website and that there are administrative matters arising from dealing with shopping Centres and ensuring compliance with various Government bodies.
Given the above findings, the requirements of regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that 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.
Finally, reg 5.19(9)(g) requires that 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. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
Based on the employment agreement and evidence provided, the nominee will be employed full-time for at least 3 years, and the terms and conditions of the nominee’s employment will not exclude the possibility of extending the period of employment.
The most recent financial statements and results reflect that the nominator’s business has the capacity to employ the nominee for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The annual market salary rate was determined to be $60,000. This is the current annual wages of the nominee which the business has been paying.
Given the above findings, the requirements of regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
According to IMMI 18/033, the Annual Market Salary Rate (AMSR) for an equivalent nominated occupation, or an occupation in relation to which a position is nominated under reg 5.19 of the Regulations, is the annual earnings of an Australian worker contained in that instrument.
When making the application, the applicant provided SEEK job advertisements to show how the AMSR was determined. On review, the Tribunal requested submissions on how the AMSR was determined and was provided with a letter from the accountant confirming that there is not any single fairwork award that applies for the nominated position but a combination of the General Retail Industry Award 2020 (Retail Award) and the Clerks – Private Sector Award 2020 (Clerks Award). It was highlighted in the section of the Retail Award regarding coverage that clerical functions undertaken away from the retail establishment are not covered.
It was submitted that if the Clerks Award did apply, the position may be Level 5. According to the current version of the Award, incorporating amendments up to 1 August 2023, the minimum weekly rate is $1,148.40, which is $59,737.60 per annum. The submissions refer to evidence provided from Job Outlook, similar job advertisements, surveys and regional NSW information.
According to IMMI 18/033, the Annual Market Salary Rate for reg 2.72(17) for the position where there is where there is not an Australian worker performing equivalent work must be determined by reference to the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to ‘relevant information’.
‘Relevant information’ may include, but is not limited to:
(a) information published on the Australian Government’s Job Outlook website;
(b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
(c) written advice from registered employer associations and/or unions;
(d) remuneration surveys generated across the relevant industry by a reputable organisation or body
The information presented from Illawarra Mercury reflect that the average pay for Office Manager jobs in Regional NSW is $84K per year, with Entry-level positions starting at $60K per year, while the most experienced workers can earn up to $100K per year. It appears that the submissions are that the AMSR is $60,000 for the purposes of reg 2.72(15)(c). The Tribunal finds that the AMSR for the nominated occupation of Office Manager is more than the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900.00 and that the requirements of reg 2.72(15)(d) are met.
As the nominee’s annual earnings of $60,000 will not be less than the rate for the occupation, the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation, will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
While the salary for the occupation varies depending on skills and experience, as well as the nature of the business, there is no information before the Tribunal that indicates the AMSR is inconsistent with Australian labour market conditions relevant to the occupation and the requirements of reg 2.72(15)(g) are therefore met.
Given the above findings, the requirements of reg 5.19(9)(h) are met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The August 2023 employment agreement for this position and signed by the nominee refer to the Fair Work Act 2009 and includes a reference to the superannuation legislation. There is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent.
Given the above findings, the requirements of reg 5.19(9)(i) are met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
The position is located at Hamlyn Terrace which is a place in regional Australia, and the business operated by the nominator is located at that place and in surrounding suburbs. Advertisements were provided to demonstrate that the position had been advertised but no applications received which supports a finding that the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.
The Tribunal has proceeded to first consider whether the tasks of the position align with the ANZSCO description for the occupation of ‘Office Manager’ (ANZSCO Code 512111). This is an occupation specified by the Minister in IMMI 19/047 for the purposes of reg 5.19(13).
The lead statement, which summarises the main activities and the boundaries of the occupation, indicates that an ‘Office Manager’ organises and controls the functions and resources of an office such as administrative systems and office personnel (emphasis added).
A list of the tasks was provided with information from Job Outlook for the occupation:
·contributing to the planning and review of office services, and setting priorities and office service standards
·allocating human resources, space and equipment
·assigning work to and monitoring work performance of staff
·managing records and accounts of the office
·liaising with Professionals to coordinate office business and to facilitate resolution of problems
·ensuring office equipment and supplies are maintained
·ensuring compliance with occupational health and safety regulations
·ensuring work complies with relevant government legislation, policies and procedures
·coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision
The evidence is that Ms Sapir Sharabi undertakes various duties from a home-based office for the operations of a retail business which include ordering; bookkeeping; payroll; advertising, interviewing and on-boarding sales ambassadors; preparing rosters and arranging travel and accommodation for sales team if the kiosk is located away from the offered accommodation. The Tribunal accepts that she also deals with customer enquiries made by email or through their website and addresses work related matters such as schedule delays, lack of materials, customer issues, shopping Centre concerns and financial concerns. It was claimed, and the Tribunal accepts on the evidence provided after the hearing, that the nominee had arranged for compliance with the COVID Safe workplace requirements, which may be relevant to the tasks of ensuring work complies with relevant government legislation, policies and procedures and ensuring compliance with occupational health and safety regulations. The Tribunal also accepts that the nominee maintains a calendar to record kiosk locations at which they will be based and dates, although notes that the license agreements for Bateau Bay Square executed between the owner, JLL NSW Pty Ltd, and the nominator as the licensee in the agreement and Semi-Permanent Casual Mall Licence Agreement for Castle Towers Shopping Centre and Charlestown Square from The GPT Group are addressed and signed by Avishay Sharabi as the contact or authorised person.
The evidence does not reflect that there are any office personnel, and it appears that she carries out all the administrative work herself. All other employees and subcontractors are engaged in selling skincare products on commission at the kiosks which are retail locations. The evidence reflects that Ms Sharabi makes decisions, alongside Mr Sharabi, regarding the business which may include product to be sold, and also makes decisions on stock levels by examining daily sales and ordering from the supplier as well as other duties that are listed in ANZSCO for the occupation of Retail Manager (ANZSCO code 142111). The lead statement for this occupation in ANZSCO, is “organise[s] and control[s] the operations of establishments which provide retail services.” This occupation was also on the regional list.
Given this, the Tribunal finds that the tasks correspond to the tasks of an occupation specified in the relevant instrument; and reg 5.19(12)(d) is met.
As noted above, the RCB advised on whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned as required by reg 5.19(12)(f). The RCB advised that the RCB did not consider that there is a skills shortage for this occupation in the Central Coast of NSW on 15 January 2020. This is now 4 years ago. The latest information from the Jobs and Skills Atlas[4] specifically regarding the Central Coast NSW reflects that there is a regional skills shortage for salespersons and retail managers which reflects that there is a regional shortage within the Retail Industry. The Tribunal has taken into account that recent data reflects that the occupation for this nomination is within an industry where there is an identified regional skills shortage.
[4] based on data reported in November 2023.
Given the above findings, the requirements of reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Conclusion
Based on the findings above regarding each of the requirements for approval that apply to this application, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19(3)(a) 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.
Wan Shum
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(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:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(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.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
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.

Regulations 2023 (the Regulations) amend the Migration Regulations 1994 (the Migration
Regulations) to expand pathways to permanent residence for temporary skilled workers. See also explanatory statement to the amending regulations which explain that the
Regulations implement decisions of the Government made in response to the Jobs and Skills
Summit held in September 2022. In particular, the Government announced that, by the end of
2023, temporary skilled sponsored workers would have a pathway to permanent residence.

[2024] AATA 96

19 January 2024

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