Super Mobiles Telecommunication Pty Ltd (Migration)

Super Mobiles Telecommunication Pty Ltd (Migration) [2024] AATA 341 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Super Mobiles Telecommunication Pty Ltd

REPRESENTATIVE:  Mr Kawsar Khan (MARN: 0962474)
CASE NUMBER:  2011795
HOME AFFAIRS REFERENCE(S):          BCC2020/446991
MEMBER:Alison Mercer
DATE:13 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 February 2024 at 4:13pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Hardware Technician – genuine need for the position – business income came from the sale of mobile accessories (rather than repairs) – updated documentary material received – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 July 2020 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, Super Mobiles Telecommunications Pty Ltd (trading as Anytime Phones Wentworthville), applied for approval of its nominated position of Hardware Technician on 15 February 2020. 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 (TRT) stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(e) and 5.19(5)(k) of the Regulations, which required that the applicant had a genuine need for the nominated position. The delegate acknowledged that the nominee had been granted a subclass 457 visa on the basis that he was undertaking the nominated occupation, but was not satisfied that the applicant’s business had an ongoing need for the nominated position, particularly given the applicant’s profit and loss statement for 2018/2019 showed its income came from the sale of mobile phone accessories, and its website indicated that the business was closed. The delegate found that this indicated that the nominated position would not carry involve the range of duties listed for a Hardware Technician in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary.
The Tribunal received a review application on 18 July 2020. It was lodged on behalf of the applicant by its director, Mr Nurul Amin, and was accompanied by a copy of the delegate’s decision.
On 28 July 2020, Mr Amin provided the applicant’s ASIC and ABN registration details. On 11 November 2020, he provided details of the applicant’s website, a statement about the genuine need for the position within the business, payslips for the nominee Mr Bulet Talukder, confirmation of the nominee’s employment, bank statements for the applicant and submissions in support of the case.
On 11 August 2023, the Tribunal wrote to Mr Amin pursuant to s.359(2) of the Act to invite him to provide updated and current information indicating how the applicant met all of the applicable in r.5.19 (not simply the criterion that the delegate found was not met). He was requested to provide this information by 25 August 2023.
On 25 August 2023, the Tribunal received the following information from the applicant:
·ASIC and ABN registration details for the applicant;
·company tax returns for 2020/2021 and 2021/2022;
·financial statements for 2020/2021 and 2021/2022;
·Business Activities Statement (BAS) from January 2021 to June 2023;
·organisational structure chart;
·position description;
·PAYG statements for the nominee from 2015/16 to 2022/2023;
·employment contract for the nominee dated 22 August 2023;
·payslips for the nominee from June 2022 to August 2023;
·employer superannuation contributions for the nominee from 2020/2021 to 2021/2022;
·statement about the genuineness of the nominated position;
·Department notification of approval of the applicant as a standard business sponsor, and grant of a subclass 457 visa to the nominee; and
·work samples for the nominee and email correspondence between the nominee and customers of the applicant business.
On 14 November 2023, the Tribunal wrote to Mr Amin via the agent to invite him to attend a hearing on behalf of the applicant, to be held on 13 December 2023 by videoconference, and combined with another hearing for a separate nomination refusal decision (this one in relation to a subclass 482 temporary visa for the same nominee) (MRD/AAT 2219239). The Tribunal requested that the nominee be available to give evidence as well, and that any further submissions be provided at least 1 week prior to the hearing.
On 12 December 2023, the Tribunal received the following additional submissions from the applicant’s director, Mr Amin:
…
1.0 BACKGROUND
The Applicant, Super Mobiles Telecommunication Pty Ltd is lawfully operating business in Australia since 2015 (ABN 12 603 629 661).
The applicant lodged a nomination application for an Employer Nomination Scheme (subclass 186) visa on 15 February 2020.
On 06 July 2020 Mrs. Ruth (“the Case Officer”) refused the nomination application for an Employer Nomination Scheme (subclass 186) visa stating, “On assessment of the information submitted, I am not satisfied that the requirements set out in sub regulation (4) are met. Specifically, I am not satisfied that the requirements in regulation 5.19(4)(e) are met. Accordingly, I must refuse to approve the nomination.”
1.1 Reasons for refusing the visa application are summarised as follows:
The Case Officer is not satisfied that there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator, The Case Officer also states,
Within subregulation (5), 5.19(5)(k) is not met. Subregulation 5.19(5)(k) states:
5.19
(5) If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(k) there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator
The Case officer also stated that,
1. Sub regulation (5), 5.19(5)(k) is not met; Regulation 5.19(5)(k) requires that the nominator has a genuine need to employ the person as a paid employee, to work in the position under the nominator’s direct control.
2. can not be satisfied that the position continues to fit within the regular and ongoing business activity
3. business website address is unable to be opened and is not a functioning business website.
2.0 SUBMISSIONS
In response to Mrs. Ruth’s Record of Decision Applicant provide the following submissions.
2.1 Position is Genuine and required for ongoing Business
At page 3 paragraph 4 of her Decision Record, The Case Officer states:
“The nominator provided a position description in support of the application, which lists the duties and responsibilities of the nominated position. These tasks and responsibilities appear to be consistent with the main duties and responsibilities listed in the 457 nomination application form. The nominator also provided the nominee's PAYG Payment Summaries and Notice of Assessment documents issued by the Australian Taxation Office. Whilst I acknowledge these documents, the nominator has not demonstrated why the position continues to be genuinely needed in their regular, ongoing business activity and how it contributes to maintaining or enhancing the volume and/or quality of business outputs. The nominator has not demonstrated the impact on the business if the nominee is unable to continue in their position.”
-
Super Mobiles Telecommunication Pty Ltd is lawfully operating in Australia for 5 years and is a Mobile Phone shop. The business operational service is mobile phone repair and servicing along with sales of mobile phone hardware parts and accessories. A Hardware Technician (ANZSCO Code: 313111) is a key position for the business. We have conducted a Genuine Position Report (attached) which demonstrate the genuine need of the position. The report also demonstrates that, how A Hardware Technician is beneficial for a mobile phone shop business like ours and also it will be a significant disadvantage for our business by not having a Hardware Technician on ongoing and regular basis. Some of the key factor from the report of the position in our business are outlined below;
• A Hardware Technician at work is responsible for rectifying faults in the mobile phone brought in by the customer. The Hardware Technician receives the faulty mobile phone, diagnoses the problems, performs front end or hardware level repair as required, resolves software issues and ensures effective functioning before delivering back to customer.
• Skilled and experienced hardware technicians is a significant employee in mobile phone shop. Though, there is rampant ‘job hopping’ trend among technicians which sometimes leads to a huge burden on the owner running the cell phone repair business at regular intervals. It is, therefore, necessary to always have regular and continuing permanent hardware technicians on hand to avoid going into such crises.
• A good hardware technician will also help increase the productivity of the whole service center and finish the jobs faster and more accurately than others which will be help the business grow faster and creating loyal customer.
• As cell phones today are becoming indispensable, everyone wants them to be fixed as soon as possible; people aren’t willing to wait longer. With all their crucial data inside, it also becomes difficult to substitute a temporary phone or tablet. Hence if we want our business to grow and earn a good reputation while we are at it, we will have to be quite resourceful and a skilled and experienced hardware technician to achieve this quick service.
• Because of the competitors in the area, Anytime Phones Wentworthville need to differentiate from other mobile shop within the local area to seduce customers and create a loyal customer base. From the very beginning, the strategy of the mobile shop is to offer the best quality repair service and by doing so it naturally distinguishes itself from competitors. The growth of the mobile shop greatly depends on the skills and professionalism of the staff and the strong focus on offering quality repair service with original parts and accessories products. In order to stay successful and differentiate from competitors, Anytime Phones Wentworthville has to constantly offer the best possible service and thus ensure an even stronger reputation.
• To enable them to remain open for six days a week and manage the business diligently, the mobile shop is in need of a dedicated hardware technician. The proposed position is in line with the company’s commitment to achieve this strategic growth.
• Hardware Technician Position is required to differentiate Anytime Phones Wentworthville from its competitors. Nominee will be focusing on the business by repair hardware issues on mobile devices and walk customers through repair process that matches or exceeds long term business needs. Hardware Technician will focus on building trust with the customer. Hardware Technician will need with making revenue growth an inherent part of daily conversations and service.
• Availability of spare parts at hand is the another most important thing in the mobile phone repair business. A Hardware Technician has the best knowledge of which parts are on trends and profitable for ongoing business. Also, during a service A Hardware Technician can recommend a customer for buying parts and accessories from our shop.
Super Mobiles Telecommunication Pty Ltd able to demonstrate the genuine need of a Hardware Technician in the ongoing business. Please see the attach the detailed Genuine Position Report.
Photos of Nominee Working There are some photos of nominee working in his previous work commitments
…
There is also a YouTube Channel to showcase how our Hardware Technician (nominee) perform their task. Channel link
-

2.2 We have work order (Tax Invoice) from our customers
At page 3 paragraph 5 of her Decision Record, The Case Officer states:
“The nominator's Profit & Loss Statements from July 2018 - June 2019, show that the entire business income of $250,590.90 is derived from the sales of mobile accessories. In the absence of independently verifiable evidence such as contracts or work orders from clients or customers, I cannot be satisfied that the position continues to fit within the regular and ongoing business activity of the employer and is responsible for supporting and maintaining computer systems and peripherals by installing, configuring, testing, troubleshooting, and repairing hardware.”
-
All of our financial records are maintained by Global Accountants and Business Services Pty Ltd (ABN 68 624 137 908). They have also prepared the Profit & Loss Statements from July 2018 - June 2019. Based on the case officers claim, we contact our accountant and came to know that, they have prepared this Profit & Loss Statements by narrowing all the source of income in one category which is sales of mobile accessories. We also have our Receipt / Tax Invoice of nominee’s previous work term and nominee’s payslip to show that the business has regular income by the nominee and paid him on regular basis. Please see the attached Accountant letter and Tax Invoices and Payslips.
One of the tax invoices
…
2.3 Our Website is functional and visible to public
At page 4 paragraph 1 of her Decision Record, The Case Officer states:
“Further, the website address provided by the nominator in the application form, 'https:// is unable to be opened and is not a functioning business website.”
-
Our website ‘ was fully functional and visible on the internet. Based on the case officer’s information, we have contacted the website developer ‘Cyber Web Solution’s’. They have written to us that, when this website was developed in 2015, the website was designed and coded with Java Servlet language. This programing language is no longer developed and stop supporting by most of the browsers. This could be the reason for invisibility of the content of the website but not the web address They have updated the website content in Java Spring Framework which is the latest programming language and supported by the most of the browsers. But unfortunately, due to current website reformation of Content Management System the current domain ‘ now abolished from the internet and our business website is now available on the ‘ domain. The letter from the web developers attached with the submission.
Screenshot of the Functioning Business Website:
…
CONCLUSION
Super Mobiles Telecommunication Pty Ltd submit that they satisfies [sic] the Subclass 186 criteria. We have provided this information best to our understanding and knowledge and tried our best to demonstrates [sic] that there is a genuine need for the nominator to employ the nominated person to work in the nominated position under their direct control. The likely impact on the business if the nomination was refused would be that the, business operating in the similar industry have the Hardware Technician Position and Super Mobiles Telecommunication Pty Ltd may be put at a disadvantage by not having a comparable position. The proposed position is a significant and key position for the ongoing business operation and revenue. We really hope to be granted this visa.
…
On behalf of the applicant, Mr Amin appeared before the Tribunal on 13 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Bulet Talukder, and from another witness and customer of the business, Dr Chandrika Subramaniyan, who also participated by videoconference, as did the applicant’s migration agent, Mr Khan.
The Tribunal exercised its discretion to hold the hearing by videoconference, having determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, nominee, witness and agent, all of whom resided in New South Wales, while the Presiding Member was based in the Victorian registry of the Tribunal. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Dr Subramaniyan told the Tribunal that she had dealt with the nominee, Mr Talukder, since 2016, in his capacity of Hardware Technician with the applicant. She confirmed that her law practice office was a co-tenant of the applicant, and that while she knew Mr Amin as a co-tenant, she dealt mainly with Mr Talukder and could confirm that he had been working as a Hardware Technician for the applicant since 2016. Dr Subramaniyan described the work that Mr Talukder had undertaken on her PC, and various other devices, such as iPads and phones. She told the Tribunal that she was very pleased with his work and the pricing, and had recommended him to friends and family. She further noted that Mr Talukder had been particularly helpful in repairing her computer during the COVID19 pandemic, when she dropped it off to him.
Mr Amin told the Tribunal that he relied on the nominee Mr Talukder as his key employee and sole Hardware Technician. Mr Amin clarified that he is a director and established the business but was not a Hardware Technician himself. He ran the business and sold mobile phone accessories, such as protective cases and chargers and so on. Mr Talukder undertook the complex hardware repairs to damaged phones and other devices, such as shattered screens and damaged batteries. Mr Amin said that he was now 62 and had a range of health issues, so was looking to retire and wanted Mr Talukder to take over. He noted that his own son was a lawyer, and was not able to take over the business.
In response to the Tribunal’s query, Mr Amin said that the business had not finalised its 2022/2023 financial statements or company tax return but he estimated its turnover for this financial year was approximately $250,000, an increase on the previous financial year. The Tribunal noted that the business’ turnover for 2021/2022 was $160,760 (approximately), which was significantly less than what Mr Amin estimated for 2022/2023, and significantly less than the turnover for 2020/2021 (approximately $260,000). Mr Amin told the Tribunal that the business previously operated 2 other branches besides the Wentworthville one where the nominee worked, but he had closed them about 2 years ago, so there was a downturn in income initially. However, it had built up again post-COVID19. Mr Amin said that he closed the other 2 businesses as it was too hard to find and retain suitably experienced Hardware Technicians who were prepared to work in the business full time. Mr Amin added that the financial performance of the remaining repair shop in Wentworthville had increased due to the nominee Mr Talukder’s ability to generate a loyal customer base. Mr Amin noted that the area had a high population of Indian and Bangladeshi people, and Mr Talukder spoke Bangladeshi and Hindi.

Mr Amin confirmed that there were 2 other casual employees in the business, being a back office assistant and a sales rep, but they were not full time or even regular part time positions. Therefore, he relied heavily on Mr Talukder. Neither of the other employees had the expertise to undertake hardware repairs.
In response to the Tribunal’s query, Mr Amin said that there was no family relationship between him and Mr Talukder. He said that his brother in law introduced him to Mr Talukder in 2015 as a friend who was a Hardware Technician, which might be useful to Mr Amin, who was establishing the business. Therefore, he contacted Mr Talukder about 6 months later, and after an employment trial, offered him the full time position of Hardware Technician.
In response to the Tribunal’s query, Mr Amin said that there were some issues with the Australian Taxation Office (ATO) and the business a few years ago, but they were all resolved with a payment plan by February 2020, when the nomination application was lodged.
Mr Talukder confirmed that he is the only Hardware Technician working in the business, and usually worked 10am to 6pm on weekdays and then 10am to 3pm or 5pm on Saturdays. The business was closed on Sundays. He and Mr Amin then clarified that on Saturdays, Mr Talukder is essentially ‘on call’ and only came in if there was an urgent repair to be undertaken. His normal hours per week were 38 hours, and his salary was paid on this basis, although he was also paid for overtime if worked, and cash bonuses on occasion. Mr Amin also noted that he rented accommodation to Mr Talukder and his family for a modest cost, to encourage him to stay with the business. Both Mr Amin and Mr Talukder described having a commitment and loyalty to each other and to the business.
The Tribunal noted that the ASIC information provided indicated that in addition to Mr Amin being a director (and the sole director as indicated in the organisational chart provided), Mr Talukder was also a director, the company secretary and the majority shareholder, and asked why and how this came about. Mr Amin stated that it was partially in recognition of Mr Talukder’s loyalty and skills, and the likelihood he would one day take over the business from Mr Amin. Mr Amin added that it was also because he wanted to authorise Mr Talukder to deal with the bank and the company’s suppliers on behalf of the company. His accountant advised him to make Mr Talukder a director. He volunteered himself to transfer shares to Mr Talukder and said that he eventually would give him 100% of the shares in the company. Both Mr Talukder and Mr Amin confirmed that Mr Talukder did not pay for the shares he was allocated, and that these changes to the company took place in 2021, during the COVID19 pandemic. Mr Amin told the Tribunal that he was scared he was going to die during this period, as he had a range of health issues (including high blood pressure and diabetes) and wanted there to be an alternative person who could act on behalf of the company. He reiterated that it was also to symbolise his regard for Mr Talukder’s loyalty to the business, and that such arrangements were not uncommon in Bangladeshi culture. He said that he regarded Mr Talukder as being like another son to him. Mr Talukder said that he was very grateful to Mr Amin for giving him opportunities in the business and wished to stay there long term. They both indicated that it was intended that the nominee Mr Talukder would continue in the business beyond the 4 years set out in the most recent employment contract of August 2023.
Mr Amin told the Tribunal that he would have to close the business if Mr Talukder could no longer continue there, and in recognition of Mr Talukder’s contribution to the business, Mr Amin had increased his salary to $71,000 (plus super) from $60,000. In response to the Tribunal observing that Mr Talukder’s 3 most recent PAYG statements showed income of less than $60,000 per year, Mr Amin undertook to have his accountant clarify this. Mr Talukder said his net pay remained the same throughout this period. In response to the Tribunal observing that the 2021/2022 financial statement showed total income of approximately $162,700 and wage payments of approximately $56,300, which appeared to relate solely to Mr Talukder’s wages, Mr Amin said that he would get his accountant to provide draft financial statements for 2022/2023 showing that business turnover had in fact increased and that the company had the financial capacity to pay the nominee the proposed salary of $71,000 per year plus super for at least 2 years. He also said that he was prepared to forgo income from the business for himself in lean times, to ensure it was able to continue operating, as he regarded it as his ‘baby.’ He also indicated that he had the financial capacity to expand the business (either with income from another business or drawing down on his home loan) but that he was reluctant to do so unless he could be sure that Mr Talukder could continue in the business.
Mr Talukder told the Tribunal that he came to Australia in 2012, and had been working for the applicant since 2016, a period of almost 8 years. He had worked hard to build the business for Mr Amin, and enjoyed his work. He and Mr Amin both wanted him to be able to stay permanently.
At the conclusion of the hearing, the Tribunal requested that the agent obtain from the applicant’s accountant draft financial statements for 2022/2023 and an explanation of why the nominee’s last 3 PAYG statements showed income of less than $60,000 per year, and also Mr Talukder’s banking records showing salary transfer amounts for a reasonable period. The Tribunal requested this information by 8 January 2024 and estimated that it would make its decision by mid-February 2024.
On 5 January 2024, the Tribunal received the following additional information:
·the applicant’s 2022/2023 company tax return;
·a letter from the applicant’s accountant, dated 22 December 2023; and
·the nominee’s bank statements for the period November 2016 to September 2023.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF LAW, 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. As the subclass identified in the nomination is subclass 186, this does not apply in this case.
From its review of the material on the Department’s file, including the nomination application, the Tribunal is satisfied that the nomination application met the above requirements.
Accordingly, 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.
At hearing, the Tribunal raised with Mr Amin the fact that the Department’s records include a note from January 2020 to the effect that ‘ATO data indicates that the declared turnover and salary are significantly inflated,’ but there is no evidence of any further investigation of this (or any other issue) by the Department. Mr Amin told the Tribunal that the company had some issues with the Australian Taxation Office (ATO) some years ago but these had been rectified to the satisfaction of the ATO via a payment plan in February 2020.
The Tribunal is not satisfied that this does constitute ‘adverse information’ of the type contemplated by r.1.13A, but finds that even if it were to constitute adverse information for these purposes, it is reasonable to disregard it in this case, as it occurred approximately 4 years ago and was rectified with the ATO at that time.
There is no other evidence before the Tribunal of any other adverse information known to Immigration about the applicant or any other person associated with it.
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 New South Wales, the relevant occupation is Hardware Technician and the date of application is 15 February 2020.
The Tribunal is satisfied that the nominated occupation does not require 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 in New South Wales.
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.
There is no evidence before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth, and of New South Wales.
Given the above findings, the Tribunal is satisfied that 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.
There is no evidence before the Tribunal to indicate that the applicant has a debt pursuant to s.140ZO of the Act.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is 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.
The Tribunal is satisfied from the Department’s records that at the time that the applicant lodged its nomination on 15 February 2020, the nominee held a subclass 457 visa.
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 Hardware Technician (ANZSCO code 313111).
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).
The Tribunal has reviewed the Department’s records and ANZSCO and is satisfied that that the nominated occupation of Hardware Technician is listed in ANZSCO and was the occupation in relation to which the nominee Mr Talukder’s most recently held subclass 457 visa was granted. It therefore finds that r.5.19(5)(b) is met.
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 relevant instrument specifying the occupation at the time that the nomination was lodged was LIN 19/049.
However, the Tribunal is satisfied that there is currently no correct instrument for the purposes of r.5.19(5)(c) as a result of the Migration Legislation Amendment (Expanding Access to Temporary Residence Transition Stream) Instrument 2023 (LIN 23/078). This is because LIN 23/078, at [15], repeals subsection 6(1) of LIN 19/049, which contained the requirement for the occupation to be specified. There was no replacement, so it appears to the Tribunal that there is no longer a requirement for the occupation to be listed; and as a result, there is no correct instrument;
In addition, the Tribunal notes that LIN 23/078, at [9], substitutes the original length of time that a person was required to hold a 457 or 482 visa for from 3 of the previous 4 years, to holding a 457 or 482 visa for 2 of the previous 3 years before the application was lodged.
The Tribunal is satisfied that the above changes apply to all applications lodged after 18 March 2018 that are not yet finally determined ([17] of Lin 23/078) and thus apply to this nomination.
Given this, the Tribunal finds that r.5.19(5)(c) is met.
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).
Based on the oral evidence of Mr Amin and Mr Talukder at hearing, the Tribunal is satisfied that there is no information known to Immigration that indicates that Mr Talukder is not genuinely performing the tasks of the occupation of Hardware Technician as set out in ANZSCO. It therefore finds that r.5.19(5)(d) is 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. The Tribunal is satisfied that the nominated occupation is not specified in the relevant instrument under r.2.72(13), and r.5.19(5)(f) must therefore be satisfied.
In this case, the nomination application was made on 15 February 2020. The relevant instrument made under reg 5.19(6) is LIN 22/038. Having regard to the terms of that instrument, the Tribunal finds that it is applicable (as the nominee is a ‘specified person’ under item 4(2) as he held a subclass 457 visa on 18 April 2017) and has applied the modified time periods as set out in item 5(1) of that instrument: namely, 2 out of the 3 years immediately before the date on which the nomination was lodged on 15 February 2020 (that is, the 3 year period between 14 February 2017 and 14 February 2020).
From its review of the material on the Department’s file, the Tribunal is satisfied that the nominee has been employed as a Hardware Technician by the applicant on a full time basis since 18 February 2016, a period of nearly 4 years at the date of lodgement of the nomination. The Tribunal is further satisfied that the nominee was granted a subclass 457 visa on 18 February 2016, which ceased on 18 February 2020.
Given the above findings, the Tribunal is satisfied that regs 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 (SBS) 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.
The Tribunal has reviewed the material on the Department’s file and the material provided by the applicant, from which it is satisfied that the applicant was the SBS who last identified the nominee Mr Talukder in a nomination approved under s.140GB of the Act, and that the applicant is lawfully and actively operating a 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 has reviewed LIN 19/212 and is satisfied that it does not include the occupation of Hardware Technician, and thus the applicant must meet the above requirements.
The Tribunal is satisfied that the nomination application identified a need for Mr Talukder to be employed in the nominated occupation of Hardware Technician under the direct control of the applicant, which is also supported by the applicant’s provision of an updated contract of employment between the applicant and the nominee dated 22 August 2023.
Accordingly, the Tribunal finds that r.5.19(5)(j) is met.
The Tribunal notes that the delegate found that r.5.19(5)(k) was not met as they were not satisfied that the applicant’s business had an genuine, ongoing need for the nominated position, particularly since the 2018/19 financial statements indicated that the business income came from the sale of mobile accessories (rather than repairs). The delegate also noted that the applicant’s website (as at the time of the delegate’s decision in July 2020) indicated that the business was closed.
The Tribunal has received updated documentary material from the applicant, and has also had the opportunity to take evidence from both Mr Amin, the principal of the business, and Mr Talukder, the nominee, at length during the hearing on 13 December 2023.
Based on this, the Tribunal is satisfied that the applicant has a genuine need for a Hardware Technician in its business. In reaching this conclusion, the Tribunal gives weight to the following:
·the evidence of Mr Amin about the history of his business, including the fact that he has now closed 2 other branches and only operates 1 branch, in which the nominee is the only mobile phone repairer;
·although the business sells mobile accessories, a significant part of its business is the diagnosis and repair of mobile phones and other devices such as Ipads; and
·this business is ongoing and the nominee has carried out this role for approximately 8 years, and Mr Amin wishes the nominee to take over the business as Mr Amin intends to retire.
Based on the available evidence, the Tribunal is satisfied that the applicant’s business has an ongoing and genuine need for the position of Hardware Technician, and that the nominee carries out the majority of the tasks set out in the ANZSCO occupational description for a Hardware Technician, to ‘support and maintain computer systems and peripherals by installing, configuring, testing, troubleshooting and repairing hardware’, including duties such as:
·determining software and hardware requirements to provide solutions to problems;
·responding to inquiries about software and hardware problems;
·adapting existing programs to meet users' requirements;
·installing and downloading appropriate software;
·ensuring efficient use of applications and equipment; and
·repairing and replacing peripheral equipment such as terminals, printers and modems.
The Tribunal notes that there are other duties listed in ANZSCO which are not carried out by the nominee, but further notes that the tasks in ANZSCO are expressed to apply to the Unit Group of ICT Support Technicians, which includes the occupations of ICT Customer Support Officer, Web Administrator and ICT Support Technicians not elsewhere classified, in addition to the nominated occupation of Hardware Technician. The Tribunal also notes that the current version of ANZSCO is yet to contain any occupations specifically related to the mobile phone industry, and thus the Tribunal accepts that Hardware Technician is the closest occupation to the role carried out by the nominee in the applicant’s business.
Given the above, the Tribunal is satisfied that the applicant has a genuine need for the nominated position and it finds that r.5.19(5)(k) is 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 has reviewed LIN 19/212 and is satisfied that the nominated occupation is not on it. Therefore, the requirement in r.5.19(5)(l) does apply in this case.
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 is satisfied that the most recent contract of employment for the nominee provides for full time employment on a permanent basis, with no express exclusion or limitation on the period of employment. The Tribunal is therefore satisfied that rr.5.19(5)(l) and (m) are met.
In relation to whether the applicant’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 (AMSR) for the occupation each year, the Tribunal notes that the applicant has employed the nominee as a Hardware Technician on a full time basis for the last 8 years, as evidenced by the nominee’s PAYG summary statements from 2015/16 to 2021/2022, his payslips for the period June 2022 to August 2023 (with corresponding bank account statements for the nominee showing receipt), together with a record of the applicant’s employer superannuation contributions for the nominee from 2020/2021 to 2022/2023.
For the reasons set out in the section below concerning the annual salary requirement in r.5.19(5)(o), the Tribunal is satisfied that the AMSR in this case is $60,524.
The most recent financial statements for the applicant are for 2021/2022, and indicate that in that financial year, the turnover of the business was $162,703, and that its expenses of $101,895 included $56,316 in salary and wages and $5,632 in superannuation. As discussed with Mr Amin at hearing, this represents the salary for the nominee only, as Mr Amin indicated he did not draw a salary from the business, and no longer operated more than 1 branch. He also indicated that the sales/front of house part of the business were either carried out by him or a casual, part time employee.
In response to the Tribunal’s concerns about whether the applicant has the financial capacity to pay the nominee at least $60,524 for at least 2 years, the applicant’s accountant provided a statement on 22 December 2023 making the following points:
…
According to Business's declaration & information, I can say that I have checked the bank statements of Mr. Bulet Talukder and Supermobiles Telecommunication Pty Ltd and both of the statements show that Mr Talukder has received Gross $ 2307.69 & $1835.69 (Net) fortnightly from 2016 to 2023, which is equivalent to $60,000 approx annual gross salary and $2,744.36 gross and $2,162.36 net salary fortnightly from July 2023 to till now, which is equivalent to approximately $72,000 per year.
I have also noticed that Supermobiles Telecommunication Pty Ltd issued PAYG to Mr. Talukder and reported it to ATO. According to PAYG Summary statements, Mr. Talukder received approx $60,000 as gross salary in 2017, 2018 and 2019 financial year. In 2020, he received a $55,318 gross salary plus $3,000 allowance. He also received $58,318 in 2021; however, he received the same amount of $56,316 in 2022 and 2023 as well, although he received the same amount of net salary until June 2023.
I also found that Mr. Talukder’s Notice of Assessment showed different amounts every year as he claimed different tax deductions each year.
…
The nominee’s gross income, according to his PAYG statements, has been as follows:
·2015/16:         $9,230
·2016/17:         $60,000
·2017/18:         $60,000
·2018/19:         $60,000
·2019/2020:      $55,318 (including $1,500 in JobKeeper allowance)
·2020/2021:     $58,318
·2021/2022:     $56,316
·2022/2023:      $56,316
The decrease in the nominee’s gross salary in the last 4 financial years is of concern to the Tribunal, particularly as the salary amounts are less than the AMSR.
However, the Tribunal accepts that the applicant’s business was affected by the various COVID19-related restrictions during 2019/2020 (as evidenced by the payment of JobKeeper allowance to the nominee in this financial year), and it further accepts that this may have continued to affect the applicant’s business, along with Mr Amin’s decision to close 2 other branches, until comparatively recently. However, given the business is now operating only 1 branch and employing minimal staff besides the nominee, and is rebuilding its clientele, the Tribunal gives the benefit of the doubt and is satisfied that the applicant will have the financial capacity to pay the nominee at least the AMSR of $60,524 for at least 2 years.
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 (currently $250,000 per year). 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 IMMI 18/033: 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 IMMI 18/033 (TSMIT, currently $53,900 for nominations lodged prior to 1 July 2023), 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).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
From the evidence provided, the Tribunal is satisfied that there is no equivalent Australian employee to the nominee who is carrying out the same tasks in the same location. In these circumstances, item 8 of IMMI 18/033 provides the following method for determining the Annual Market Salary Rate (AMSR):
…
8. Method of determining the annual market salary rate where there is not an Australian worker performing equivalent work
For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:
(a) where there is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.
(b) Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.
…
Information on the website of Fair Work Australia indicates that a person working in a retail shop and carrying out more complex repairs and installing hardware would be covered by the Manufacturing Award 2020 [MA000010]. This provides that the pay rate for a holder of a Australian Diploma with over 3 years of experience is $30.63 per hour (or $45.95 per hour for Saturday). This annualises to approximately $60,524 per year (excluding Saturday loading). The Tribunal is satisfied that this constitutes the AMSR for the occupation of Hardware Technician in this case.
The Tribunal is further satisfied that:
·the salary in the nominee’s most recent employment contract of 22 August 2023 is $71,000 per year (plus superannuation);
·the nominee’s salary therefore exceeds both the TSMIT of $53,900 and the AMSR of $60,524; and
·the AMSR exceeds the TSMIT.

100. Finally, the Tribunal is satisfied that 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.
101. For these reasons, the Tribunal finds that the requirements of reg 2.72(15)(c), (d), (e), (f) and (g) are met.
102. 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)
103. 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.
104. There is no evidence before the Tribunal to suggest that there is any information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable to those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location.
105. 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)
106. 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.

107. Having reviewed the nomination application made by the applicant, the Tribunal is satisfied that the applicant provided the above information as part of it.
108. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
109. 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
110. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alison Mercer
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.

[2024] AATA 341

13 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Natural Justice