Summer's Cafeine Pty Ltd (Migration)

Summer's Cafeine Pty Ltd (Migration) [2023] AATA 1004 (22 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Summer's Cafeine Pty Ltd
REPRESENTATIVE:  Mr Daniel Estrin
CASE NUMBER:  2207806
HOME AFFAIRS REFERENCE(S):          BCC2021/219265
MEMBER:Bridget Cullen
DATE:22 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 March 2023 at 5.29pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – café or restaurant manager – adverse information – cancellation of approval as standard business sponsor and two-year bar – combined hearing with sponsorship review – bar set aside – tasks of position, staff shortages in sector and nominee’s performance in position – post-COVID revenue, profit and expansion – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140M
Migration Regulations 1994 (Cth), rr 1.13A, 5.19(4)(b), (d)

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 10 May 2022 to reject the Applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The Applicant applied for approval on 9 February 2021. 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 Applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. The delegate refused the application on the grounds that the delegate was not satisfied that reg 5.19(4)(b) was met. The reason for this was the “adverse information” that existed in relation to the Applicant, following a 13 December 2021 decision by the Department to cancel the Applicant’s approval as a Standard Business Sponsor, and bar the Applicant from making applications for approval as a Standard Business Sponsor or Temporary Activities Sponsor under s 140M, for a two-year period.
The hearing of this matter was heard together with the related matter involving the cancellation of the Applicant’s Standard Business Sponsor agreement and sponsorship bar. The Applicant appeared before the Tribunal, in person, through Ms Shu “Summer” Zhang, Director of Summer’s Cafeine Pty Ltd, on 10 February 2023. Ms Zhang gave evidence to the Tribunal, assisted by her representative, Mr Daniel Estrin of Estrin and Saul Migration Representatives. Mr Estrin appeared remotely from Perth via Teams and made submissions and presented arguments on behalf of the Applicant. The Tribunal also received oral evidence from the nominee, Café and Restaurant Manager, Ms Ying Wang.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
On 9 March 2023, the Tribunal set aside the 13 December 2021 sponsorship bar decision by the Department and substituted a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).
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 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(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
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 Migration Act 1958 (Cth) (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 Act 2018 (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.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The application form also included disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s 245AR(1) of the Act. Accordingly, the requirements of reg 5.19(4)(a)(i) are met.
The applicant has provided evidence describing the need for the business to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
Given the above findings, 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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State, or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal, or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended, or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association, or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee, or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee, or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee, or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
On 9 March 2023, the Tribunal set aside the 13 December 2021 sponsorship bar decision by the Department and substituted a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth). This was the basis on which the delegate determined that there was adverse information known to the Department about the Applicant.
As the Tribunal determined that there was no basis to take one or more of the actions specified in s 140M of the Act following a hearing. Having made this determination, and in the absence of any other adverse information before the Tribunal, the Tribunal finds that there is no adverse information known to the Department about the Applicant of a person associated with the Applicant.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, 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 Queensland, the relevant occupation is Café or Restaurant Manager (ANZSCO 141111), and the date of application is 9 February 2021. There are no licencing, registration or membership requirements for Café or Restaurant Managers in Queensland.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is 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.
The Applicant says, through Director Ms Zhang, that it complies with workplace relations laws. The Tribunal has sighted payslips and bank records which indicate that the Applicant is paying the nominee, Ms Wang, in accordance with her entitlements. The payslips reflect that the nominee is being paid the correct rate of superannuation and leave entitlements.
Although the Department had engaged in monitoring activity in relation to the Applicant and concluded that the Applicant was not compliant with its sponsorship obligation to ensure that the nominee was working fulltime in the nominated occupation, the Tribunal took a different view from the Department. The Tribunal found that there was no basis to have decided that the nominee, Ms Wang, was not working fulltime as a Café or Restaurant Manager (ANZSCO 141111), following a hearing where the Tribunal was able to obtain details of the work performed offsite by the nominee during a short period amid the COVID-19 lockdown period in Brisbane. The Tribunal found that the evidence supported a finding that the nominee was performing tasks related to the occupation of Café or Restaurant Manager, including catering, rostering, and preparing menus for events, and that she was at all relevant times working fulltime in the nominated occupation.
The Tribunal considers that, aside from those matters raised in the related sponsorship bar matter, which did not result in any findings against the Applicant, that the Applicant has a satisfactory record of compliance and the requirements of reg5.19(4)(d) are thus 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 information before the Tribunal indicates that nomination contribution charges have been paid in full. It is not aware of any debt due under s 140ZO that has not been paid by the nominator.
Given the above, the requirements of reg 5.19(4)(da) have been met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a Subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.
Department records demonstrate that the nominee applied for a Subclass 457 visa on 17 March 2017. The nominee falls into the category of “specified person” because, on 18 April 2017, she was an applicant for a subclass 457 visa that was subsequently granted (see paragraph 6 of IMMI18/052).
The nominee was then granted a Subclass 482 (Temporary Skill Shortage) visa under the Short Term stream for the position of Café or Restaurant Manager (ANZSCO 141111) on 19 September 2019.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Café or Restaurant Manager (ANZSCO 141111).
Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4-digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).
Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c).
The Tribunal is satisfied that:
The nominated occupation of Café or Restaurant Manager is listed in ANZSCO and has the same 4-digit ANZSCO occupation unit group code (ANZSCO 141111) as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted. The nominee is a specified person (IMMI18/052) and is therefore exempt from holding an occupation listed in LIN 19/049.
The nominee applied for a Subclass 457 visa on 17 March 2017 and falls into the category of “specified person” because, on 18 April 2017, she was an applicant for a Subclass 457 visa that was subsequently granted (see paragraph 6 of IMMI18/052).
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
There is no evidence before the Tribunal which would lead it to find that the identified person is not genuinely performing the tasks of a Café or Restaurant Manager and it is not aware of any information known to Immigration that indicates that the nominee is not genuinely performing tasks of the occupation as specified in ANZSCO.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:
·a Subclass 457 visa in the Standard Business Sponsorship stream, or
·a Subclass 482 visa in the Medium-term stream, or
·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.
Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.

In this case, the nomination application was made on 9 February 2021. The relevant instrument made under reg 5.19(6) is IMMI 18/052. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument.
The different periods of time for specified persons is that any references in paragraphs 5.19(5)(e), (f) and (g) to periods of 4 years were references to periods of 3 years; and references in those paragraphs to total periods of at least 3 years were references to total periods of at least 2 years. Having regard to the terms of that instrument, the Tribunal finds that for persons such as the nominee who on 18 April 2017 held a subclass 457 visa, the qualifying period is 2 years.
The evidence before the Tribunal is that the nominee commenced her employment as a Café or Restaurant Manager with the Applicant on 20 March 2018. As the nomination was made on 9 February 2021, this means that she was employed for a period of 35 months. There does not appear to have been any periods of unpaid leave. It is claimed that the employment was full time throughout this period. The Tribunal therefore finds that the employment of the nominee was in the position in relation to which the 457 visa was granted, on a full-time basis, with the employment being undertaken in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(e) and (f) are met.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
Based on the material provided to the Tribunal, including financial statements, BAS returns, ASIC Company details, a letter dated 17 January 2023 from Jirsch Sutherland setting out the Applicant’s restructuring plan, and bank statements, the Tribunal is satisfied the applicant is actively and lawfully operating a hospitality business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) 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(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212: reg 5.19(7).
The Tribunal is satisfied that the nominated occupation of Café or Restaurant Manager is not an exempt occupation.
In considering whether the application for approval identifies a need for the nominee to be employed in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including the oral evidence received at the hearing by Ms Zhang and Ms Wang.
In support of the need for the position, the applicant’s representative has made extensive submissions, including the following:
The hospitality industry is widely acknowledged as a critical industry in Australia with a wide range of measures introduced to support local businesses facing critical skills shortages. The pandemic-ravaged hospitality industry, now face the prospect of economic recovery with the opening of domestic and international borders across Australia, with critical staff shortages.
Given the ongoing challenges caused by border closures and the COVID-19 pandemic in addition to the challenges of finding an experienced Café Manager, the Sponsor remains unable to fill the position with an Australian citizen or permanent resident.
Pre-pandemic, the hospitality industry relied on visa holders to fill 15% of their staffing needs. Yet, the number of temporary skilled visa holders in this occupation group has fallen since early 2020 by a quarter and is only slowly recovering. While NAB reports that “Accommodation & Hospitality most improved & now among the least impacted”, there is still a labour shortage of 26%, down from 37%. These figures were compiled by NAB at the end of Q4 2022 and reported on 3 February 2023 that “1 in 3 SMEs continue to identify labour shortages as a very significant issue for their business.” By State, SMEs in Queensland were still the heaviest to be impacted overall (45%).
[The nominee] has been employed with the [Applicant] for nearly 5 years and has previously held approved nominations for a subclass 457 and 482 visa in her occupation. She remains employed on a full-time basis as evidenced by her payslips showing regular salary deposits. As history is the best predictor of the future, the length of [the Nominee’s] employment in the role supports the ongoing need for her to be employed in the nominated position.
The Tribunal is satisfied on the information before it that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator. Accordingly, the requirement in reg 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7). The Tribunal is satisfied that the nominated occupation of Café or Restaurant Manager is not an exempt occupation.
Secondly, reg 5.19(5)(m) 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(5)(n) 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.
The Tribunal has had regard to the applicant’s financial information as provided to the Tribunal, the nominee’s contract of employment, and information contained on the Department and Tribunal files about annual market salary research undertaken by the applicant. In its submissions dated 3 February 2023, the Applicant explains that:
“The Modern Award that is applicable to the nominated occupation is the Hospitality Industry Award at the classification of Level 5 – Food and Beverage Supervisor. An equivalent Australian employee covered by this Award would be paid the following rates (based on 40 weekly hours).
• 35 hours at $26.31 per hour = $47.884.20 per annum
• 5 hours (Saturday) at $32.89 per hour = $8,551.40 per annum
Total = $56,435.60 per annum”
The nominee’s most recent contract of employment signed and dated 28 January 2021, sets out the terms and conditions of employment and indicate that the period of employment is ongoing. The payroll records demonstrate that the nominee is being paid a salary is $65,000 per annum plus superannuation with hours of work 38 hours per week, which the Tribunal finds is higher than the average level contained in the relevant Modern Award. There is no term excluding an extension of the period of employment.
The nominee, Ms Wang, has been performing the duties of Café or Restaurant Manager for a period of approximately 5-years since March of 2018. The Tribunal considers this to be very persuasive in suggesting that the intention of the Applicant is to continue to employ the nominee in the role.
Whilst the lockdown restrictions impacted the applicant’s revenue and profit, the applicant is confident the COVID- 19 restrictions will not impact materially in the medium to long term. The Applicant is now actually experiencing revenue increases well beyond its pre-Covid-19 sales revenue.
The Applicant has developed its catering business and has acquired contracts with both the Gaythorne Bowls Club and Keperra Sanctuary, leading to an increase in sales from $70,789 in the June 2022 quarter to $253,743 in the September 2022 quarter. The Applicant’s most recent half-year Financial Statement for the 2023 Financial Year reveals revenue of $311,516 between July 2022 to December 2022, which is a substantial increase from pandemic and pre-pandemic levels.
Although the Applicant has recently undertaken a restructuring process, the Income Statement for the year ended 2021 reveals that the Applicant incurred legal expenses in 2021 of nearly $12,000.00, having had none in 2020. The Tribunal understands that the legal expenses related to the Applicant’s need to obtain advice in relation to this, and related proceedings. The consequence of this expenditure was to increase the magnitude of the losses that the Applicant experienced because of the Covid-19 pandemic and difficulties faced by hospitality businesses. The net profit of ($35,173) after tax in this period must be viewed in the context of both the legal expenditure and the Covid-19 business downturn.
The decision to restructure, as evidenced by the 17 January 2023 correspondence from Jirsch Sutherland reveals an intent by the Applicant to overcome this challenging period and continue operations.
Based on this information, the Tribunal is satisfied that the nominee will be employed for at least two years and that the terms and conditions of her employment will not exclude the possibility of extending the period of employment.
In considering whether the business has the capacity to pay the annual market salary rate for the occupation (in this instance $65,000 per annum) to the nominee for at least two years, the Tribunal has taken into consideration evidence before it, including the applicant’s most recent financial statements, documents submitted to the ATO, bank statements and letter from Restructuring Practitioner, Mr Felix Cheung from Jirsch Sutherland, dated 17 January 2023, which confirms the applicant has met payroll and operating costs.
The Tribunal has considered the information before it, including the applicant’s most recent (2021/22) financial statements and acknowledges the applicant operates in an industry sector heavily impacted by COVID-19. Evidence before the Tribunal supports that the applicant as of 30 June 2022 recorded modest income with proportionate profit. The submitted BAS returns and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.
The Tribunal has also taken into consideration evidence before it, to support that the nominee has been continuously employed by the applicant in the nominated position since March 2018. The nominee’s bank account statements and PAYG/Income statements support that the nominee has been paid in accordance with her entitlements.
The Tribunal has afforded consideration to the financial evidence before it and is satisfied on balance, the Applicant has the capacity to employ the nominee for at least 2 years and to pay the nominee at least the annual market salary rate for the occupation each year.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) 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 (IMMI 18/033). 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 the relevant 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 relevant 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).
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings are presently $65,000 plus superannuation. As this amount is less than the amount specified in the relevant instrument for reg 2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of reg 2.72(15) must be met.
The relevant instrument is IMMI 18/033. As there is no equivalent Australian citizen or permanent resident in the role of Café and Restaurant Manager, IMMI 18/033 requires reference to any relevant modern awards. In this case, as discussed above, the Modern Award that is applicable to the nominated occupation is the Hospitality Industry Award at the classification of Level 5 – Food and Beverage Supervisor. An equivalent Australian employee covered by this Award would be paid (based on 40 hours weekly):
• 35 hours at $26.31 per hour = $47.884.20 per annum
• 5 hours (Saturday) at $32.89 per hour = $8,551.40 per annum
Total = $56,435.60 per annum
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.
As this amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for reg 2.72(15)(b) (IMMI 18/033 specifies this as $53,900). The Tribunal is satisfied that the annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of reg 2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings of $65,000 will not be less than the market salary rate and thus the requirements of reg 2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as evidenced in the nominee’s payroll information including PAYG’s/Income Statements exceed the TSMIT, and thus the requirements of reg 2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of reg 2.72(15)(g) are met.
For these reasons the requirements of reg 2.72(15) are satisfied.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
Regulation 5.19(5)(p) 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 employment contract sets out the terms and conditions of employment. Recent payslips indicate that the nominee’s salary is $65,000 per annum and hours of work 38 hours per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal has received copies of the nominee’s PAYG’s/Income statements and Income Tax return for the financial year ending 30 June 2022, confirming that the nominee has received regular salary payments and superannuation payments from the Applicant. The Tribunal is therefore satisfied based on the evidence, that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that there is no evidence before the Tribunal to indicate that there is 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.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
Given the above findings, the Tribunal is satisfied that the applicant satisfies reg 5.19(5)(q).
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.
Bridget Cullen
Senior 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.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)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;
(n)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;
(o)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;
(p)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;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2023] AATA 1004

22 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies