Suvercha Pty Ltd (Migration)

[2021] AATA 4185

Suvercha Pty Ltd (Migration) [2021] AATA 4185 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Suvercha Pty Ltd

CASE NUMBER:  1823957

HOME AFFAIRS REFERENCE(S):          BCC2016/1576432

MEMBER:Terrence Baxter

DATE:12 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 October 2021 at 11:38am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Cook – genuine need for the position – updated financial information – actively and lawfully operating a business in Australia – terms and conditions of employment no less favourable – financial capacity to employ the nominee for at least two years – tasks of the position – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 245, 359, 363
Migration Regulations 1994, rr 1.13, 5.19, 5.37
Superannuation Guarantee (Administration) Act 1992

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Hasran v MIAC [2010] FCAFC 40
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant, Suvercha Pty Ltd, applied for approval on 28 April 2016. The applicant nominated Simranjit Kaur (the nominee) in the position of Cook. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate found that the applicant did not identify a need for a paid employee to work in the position under their direct control.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 17 August 2018.

6. On 5 February 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(2) and (4) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The invitation notified the applicant that the requested information should be received by the Tribunal by 19 February 2021. On 18 February 2021, the applicant requested an extension of time of three weeks to respond to the invitation. On 18 February 2021, the Tribunal advised the applicant that an extension of time had been allowed until 12 March 2021 to respond to the invitation. The applicant provided information to the Tribunal on 15 March 2021 in response to the invitation. Accordingly, the applicant failed to provide the information within the extended time for responding to the invitation.

7. Where a review applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s.359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

8. Although the applicant did not request this, the Tribunal considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its application for review. The Tribunal decided to allow the applicant additional time to provide evidence that the applicant met the requirements of reg 5.19(4) of the Regulations. On 27 May 2021, 12 August 2021 and 3 September 2021, the Tribunal wrote to the applicant inviting it to provide information that demonstrated that it met various requirements of reg 5.19(4). The applicant provided further information to the Tribunal in response to those invitations.

9. The applicant was represented in relation to the review by its registered migration agent, Mr Kym Handberg of E-Help Education and Migration, from 10 June 2021.

10. 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

11. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented to the Department

12. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:

    a.An ASIC Certificate of Registration for the applicant and an extract in respect of the business name Auras Restaurant.

    b.ABN information for the applicant.

    c.A position description and employment contract of the nominee dated 1 November 2015.

    d.An assessment statement dated 18 April 2016 and a Form 1404 issued by the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 19 April 2016.

    e.An undated submission from a previous director, Mr Bindu Khattar.

    f.An organisational chart and business plan.

    g.An invoice for interior design services dated 29 June 2015.

    h.Evidence of the applicant’s tenancy of its business premises.

    i.Business bank account statement for the period from 31 December 2015 to 30 March 2016.

    j.Market salary evidence.

    k.A section 245AR declaration signed by Mr Khattar, dated 28 April 2016.

    l.A section 245AS declaration signed by the nominee, dated 28 April 2016.

    m.A job advertisement for the position.

    n.Activity statements for the period from October 2015 to March 2017.

    o.Submissions from the applicant’s accountant dated 12 October 2016.

    Evidence presented to the Tribunal

13. The applicant produced to the Tribunal the following documents in response to the invitation of 5 February 2021:

    a.An ASIC Australian company extract for the applicant.

    b.An ASIC current and historical company extract for the applicant.

    c.An updated organisational chart.

    d.Submissions from the current director of the applicant company, Mr Anshul Arora, dated 2 March 2021.

    e.Copies of documents previously provided to the Department.

    f.An employment contract of the nominee dated 2 March 2021.

    g.Financial reports for the 2019 and 2020 financial years.

14. The applicant also produced to the Tribunal the following documents in response to the requests for information on 27 May 2021, 12 August 2021 and 3 September 2021:

    a.Submissions from Mr Arora dated 20 June 2021.

    b.Current and historical ABN information for the applicant.

    c.An ASIC current company extract for the applicant.

    d.Updated market salary evidence.

    e.Payslips of the nominee for the period from April to July 2021.

    f.Further market salary evidence.

    g.The nominee’s taxation assessments for the 2019 to 2021 financial years.

    h.A submission from Mr Arora dated 26 August 2021.

    i.An employment contract of the nominee dated 26 August 2021.

    j.The applicant’s company tax returns for the 2019 and 2020 financial years.

    k.Various eftpos transaction records of the applicant.

    l.Various invoices relating to the applicant’s business.

    The nature of the applicant’s business

15. The documents provided by the applicant disclose that the applicant operates two restaurants, with the nominee being employed at the restaurant located at 109–117 Brisbane Street, Jimboomba, Queensland 4280. Mr Arora stated that the business had experienced increased consumer demand as a result of its location within the Logan City local government area, with Queensland Government projections for future population increase.

    The application is compliant: reg 5.19(4)(a)

16. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

17. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application was accompanied by a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.

18. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.

    [1] Dictionary.com (accessed January 2021).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

19. Although the delegate found that this requirement had not been met, the Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Cook. The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Cook under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).

20. Accordingly, having found that reg 5.19(4)(a)(i) and (ii) are met, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

21. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

22. The applicant produced to the Tribunal recent taxation returns, financial statements, evidence of currency of the applicant’s ABN, and ASIC evidence in respect of the applicant. Mr Arora provided evidence concerning the business conducted by the applicant.

23. The applicant’s financial statements and activity statements reveal that it has recorded sales of $429,734, $550,096 and $533,100 in the 2018 to 2020 financial years respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely two restaurants.

24. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour hire: reg 5.19(4)(c)

25. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.

26. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.

27. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

    Term of employment of the visa holder: reg 5.19(4)(d)

28. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

29. The employment contract dated 26 August 2021 produced to the Tribunal provides that the nominee is to work full-time for 40 hours per week. The position description is Cook. The document further provides that the agreement is to commence on the approval of the nominee’s visa. The contract provides that the employment is full-time and ongoing. According to the Department’s policy, there is no requirement for an employment contract to specifically state that the employment will be available for a period of two years. A contract that provides that the position is permanent and ongoing is sufficient to satisfy the relevant regulatory requirements. Although the Department’s policy is not binding on the Tribunal, the policy may be relied on by the Tribunal in assessing this requirement. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.

30. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The applicant has recorded profits before tax of $35,782, $33,944 and $68,359 in the 2018 to 2020 financial years. These profits were achieved after payment of wages expenses of $112,233, $207,464 and $210,425 and director’s fees of $20,999, $24,000 and $24,000 in those years respectively. The company’s 2020 balance sheet discloses that the company then had a surplus of assets over liabilities of $131,168.

31. According to the nominee’s payslips, the wages paid to her by the applicant in the 2021 financial year amounted to $79,734.03. Mr Arora has stated that the nominee’s wages in the 2021 financial year included an adjustment for an earlier underpayment. This figure is supported by the nominee’s taxation assessment for that year which discloses that she had a taxable income of $78,328. The salary payable to the nominee under the employment contract is $55,000 per annum plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992. Having regard to all the evidence, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Cook in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.

32. Accordingly, as the requirements of both reg 5.19(4)(d)(i) and (ii) are met, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

33. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

34. As recorded previously in these Reasons, the employment contract provides that the applicant will pay to the nominee a salary of $55,000 per annum plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992. The nominee is entitled to leave in accordance with the terms of the contract, which also provides that the conditions of the nominee’s employment will be in accordance with the Restaurant Industry Award 2010.

35. The applicant provided to the Tribunal evidence from the platform Indeed that the average salary payable to a Cook in Jimboomba is $51,080 per year and from the platform Seek that salaries payable to Cooks in Queensland range between $40,000 and $60,000 per year.

36. The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by the Queensland Chamber of Commerce and Industry, Toowoomba, dated 19 April 2016, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).

37. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

38. Accordingly, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

39. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

1. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

2. Accordingly, the requirements of reg 5.19(4)(f) are met.

   Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

3. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

4. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

5. Accordingly, the requirements of reg 5.19(4)(g) are met.

   Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)

6. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (see legislative instrument IMMI 15/083), the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

7. The applicant indicated in the nomination application that it was applying under the Regional Sponsored Migration Scheme in the Direct Entry nomination stream. The applicant indicated that the address where the position was to be filled was Stockland Jimboomba, Mount Lindsay Highway, Jimboomba, Queensland. The postcode stated in the application was 4350. The Tribunal notes that the correct postcode for Jimboomba is 4280. All other documents produced to the Department and the Tribunal, including the assessment by the RCB, refer to postcode 4280. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 109–117 Brisbane Street, Jimboomba, Queensland 4280. As this postcode is specified in the relevant Instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.

   Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia

8. For the reasons set out in the preceding paragraph, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.

   Regulation 5.19(4)(h)(ii)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control

9. The applicant provided evidence to the Tribunal regarding the need to employ a Cook in the position at Jimboomba. Mr Arora referred to the increased consumer demand at the restaurant. He stated that the applicant decided to employ a full-time Cook because certain kitchen staff wished to work either part-time or on a casual basis. He stated that the nominee had been employed permanently since August 2017.

10. The applicant’s organisational chart reveals that its kitchen staff include one full-time chef, the nominee employed on a full-time basis and one part-time kitchen hand. According to the applicant’s listing on the Australian Good Food Guide website, the applicant’s restaurant is open for business between 8:00 AM and 5:00 PM three days per week, between 8:00 AM and 8:00 PM two days per week and between 8:00 AM and 2:30 PM on Saturdays. The Tribunal accepts that a restaurant requires qualified cooking staff and that it is required to accommodate the need to roster employees during their normal working hours and to account for the leave entitlements of the staff.

11. The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 36 above.

12. The Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in the position of Cook at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.

    Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area

13. The applicant has provided a copy of the job advertisement for the position. Mr Arora has stated that there were no suitable applicants for the position, other than the nominee. The reasons for rejection of the unsuccessful job applicants included that they were not suitably qualified, did not possess the required skill set or had no relevant experience. The assessment of the RCB states that there are known shortages across all hospitality sectors and that Jimboomba would not be viewed as an attractive work proposition. The assessment states that it is unlikely that the position could be filled locally.

14. Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.

    Regulation 5.19(4)(h)(ii)(D) and (DA) – the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation

15. The occupation proposed by the applicant was Cook which has the six-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 351411 and which is specified in the relevant instrument, being IMMI 15/083. The tasks specified in ANZSCO for that occupation include:

    ·examining foodstuffs to ensure quality

    ·regulating temperatures of ovens, grills and other cooking equipment

    ·preparing and cooking food

    ·seasoning food during cooking

    ·portioning food, placing it on plates, and adding gravies, sauces and garnishes

    ·storing food in temperature-controlled facilities

    ·preparing food to meet special dietary requirements

    ·may plan menus and estimate food requirements

    ·may train other kitchen staff and apprentices.

16. The job description provides that the Cook is to, under general supervision, plan, prepare and document all meals for the customers of the restaurant and perform related work as required. The following examples of key duties are included in the job description:

    ·Clean food preparation areas, cooking surfaces, and utensils

    ·Preparing, seasoning, portioning food during cooking

    ·Examining food stuffs to ensure quality

    ·Cook the exact number of items ordered by each customer, working on several different orders simultaneously.

    ·Maintain sanitation, health, and safety standards in work areas.

    ·Measure ingredients required for specific food items being prepared.

    ·Operate large-volume cooking equipment such as grills, deep-fat fryers, or griddles.

    ·Prepare and serve beverages such as coffee and fountain drinks.

    ·Read food order slips or receive verbal instructions as to food required by patron and prepare and cook food according to instructions.

    ·Verify that prepared food meets requirements for quality and quantity.

    ·Wash, cut, and prepare foods designated for cooking.

    ·Clean, stock, and restock workstations and display cases.

    ·Order and take delivery of supplies.

    ·Schedule activities and equipment use with managers, using information about daily menus to help coordinate cooking times.

    ·Serve orders to customers at windows, counters, or tables.

    ·May plan menus and estimate food requirements.

    ·May train other kitchen staff and apprentices.

    ·Storing food placing it on plates and adding gravies sauces and garnishes.

17. Mr Arora provided a written statement detailing the tasks performed by the nominee in the position. He also provided a comparison between her duties and the duties of the chef. Mr Arora confirmed that the nominee has been employed as Cook since August 2017. Having accepted that a restaurant requires the services of qualified cooking staff and that there is a genuine need to employ a Cook in the restaurant, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Cook specified by the Minister in the relevant instrument, being IMMI 15/083. Evidence has been provided to the Tribunal that the nominee holds Certificates III and IV in Commercial Cookery. The Tribunal is satisfied that the occupation is applicable to the nominee in accordance with the specification of the occupation. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.

    Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position

18. As set out in paragraph 46 above, the Tribunal is satisfied that the business operated by the applicant is located at 109–117 Brisbane Street, Jimboomba, Queensland 4280 which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.

    Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same state as the location of the position has advised the Minister about the matters mentioned in reg 5.19(4)(h)(ii)(B) and (C)

19. The certificate referred to in paragraph 36 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.

20. Accordingly, the requirements of reg 5.19(4)(h) are met.

21. 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

22. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Terrence Baxter
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).