The Trustee for MCHOME Trust (Migration)

[2023] AATA 1412

The Trustee for MCHOME Trust (Migration) [2023] AATA 1412 (17 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Mchome Trust

REPRESENTATIVE:  Mr Nigel James Dobbie (MARN: 9370721)

CASE NUMBER:  1924319

HOME AFFAIRS REFERENCE(S):          BCC2018/791731

MEMBER:Terrence Baxter

DATE:17 May 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 17 May 2023 at 11:38am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – post office manager – genuine need for position and position cannot be filled by citizen or permanent resident – combined hearing with review of visa refusal – documentary and oral evidence by director of applicant and nominee – director’s other business affairs and care of young children – position re-advertised after nomination and visa refused, with only one applicant – certification by regional certifying body – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B), (C)

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 15 August 2019 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 (Cth) (the Regulations).

2. The applicant, correctly described as Mchome Group Pty Ltd as the trustee for the Mchome Trust, applied for approval on 18 February 2018. The applicant nominated Ms Qiong Wang (the nominee) in the position of Post Office Manager. The applicant has operated a Licensed Post Office at Wilsonton, an urban locality in the Toowoomba, Queensland region since 2017. The applicant has employed the nominee on a casual basis since October 2017 and as a full-time Post Office Manager since July 2018.

3. 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).

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

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy:

   a.reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found that the applicant had not demonstrated that there was a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control; and

   b.reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate found that the applicant had not demonstrated that the position could not be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 30 August 2019.

7. The sole director of the applicant, Ms Fang Qi, appeared before the Tribunal by video conference on 14 February 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conference.

9. The applicant was represented in relation to the review by its legal practitioner, Mr Nigel Dobbie of Visa Immigration Specialists Australia Pty Ltd. The representative attended the Tribunal hearing by video conference.

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

    Evidence presented prior to the hearing

11. The applicant produced to the Department of Home Affairs (the Department) the following documents:

    a.Bank statements for the period from 29 September 2017 to 29 December 2017.

    b.Job advertisements for the position accompanied by invoices paid by the applicant.

    c.Market salary evidence.

    d.A lease agreement and assignment of lease of the applicant’s business premises.

    e.ASIC current and historical company extract of the applicant.

    f.Photographs of the business premises.

    g.A business sale contract between the applicant and RedPost Pty Ltd dated 15 June 2017.

    h.A service maintenance agreement dated 1 February 2017.

    i.Evidence of salary payments to the nominee. 

    j.The discretionary trust deed of the Mchome Trust dated 25 May 2017.

    k.A current ABN Lookup form of the applicant.

    l.A Licensed Post Office agreement dated 3 October 2017.

    m.A submission from the applicant’s accountant dated 9 February 2023.

    n.A balance sheet report of the applicant dated 31 December 2017.

    o.A profit and loss statement of the applicant for the period from 3 October 2017 to 31 December 2017.

    p.Evidence of registration of the applicant’s ABN.

    q.Business activity statements of the applicant for the periods from October to December 2017 and from April 2018 to March 2019.

    r.A submission from the applicant dated 20 February 2018.

    s.An employment contract of the nominee dated 19 February 2018.

    t.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB) the Chamber of Commerce and Industry Queensland, dated 8 March 2018.

    u.PAYG payment summaries of the nominee for the 2018 and 2019 financial years.

    v.A tax return summary of the nominee for the 2018 financial year.

    w.Notice of taxation assessments of the nominee for the 2018 and 2019 financial years.

    x.Evidence of tasks performed by the nominee in the position.

    y.A letter from the nominee’s general practitioner dated 8 August 2019.

    z.Various payslips and bank statements of the nominee.

12. The applicant produced to the Tribunal the following documents:

    a.A copy of the delegate’s decision.

    b.An updated ASIC current and historical company extract of the applicant extracted on 4 October 2022.

    c.Copies of various documents provided to the Department.

    d.Business activity summaries of the applicant for the period from July 2017 to June 2022.

    e.Financial statements of the applicant for the 2018, 2019, 2020 and 2021 financial years and a draft financial statement of the applicant for the 2022 financial year.

    f.Tax returns of the applicant for the 2018, 2019, 2020 and 2021 financial years.

    g.An employment contract between the applicant and the nominee dated 2 February 2022.

    h.Current market salary evidence.

    i.Submissions from the applicant dated 22 September 2022 and 7 January 2022.

    j.A job advertisement for the position created on 15 August 2020.

    k.An updated organisational chart dated 22 September 2022.

    l.Evidence of salary payments to the nominee.

    m.Evidence of the tasks performed by the nominee.

    n.An undated reference letter of the nominee.

    o.A VETASSESS skills assessment of the nominee dated 2 March 2021.

    p.Evidence of the nominee’s qualifications.

    q.A submission from the applicant’s representative dated 9 February 2023.

    Evidence presented at the hearing regarding the applicant’s operations

13. Ms Qi and her husband decided to purchase the Wilsonton Post Office in mid-2017 as an investment. The business was purchased in the name of the Mchome Trust. At that time, Ms Qi’s husband was working in real estate, and she assisted him in that business. They both resided in Brisbane at that time. Ms Qi managed the Wilsonton Post Office business until the end of 2017, at which time the applicant advertised for a full-time Post Office Manager.

14. The nominee applied to work in the Wilsonton Post Office and was appointed on a casual basis in October 2017. She applied for the full-time position of Post Office Manager and was appointed to that position in July 2018. She has been employed in the position by the applicant since that time.

15. The Wilsonton Post Office is the only business operated by this applicant. Ms Qi and her husband operate other businesses through other entities.

    Evidence presented after the hearing

16. After the hearing, the applicant produced to the Tribunal the following documents:

    a.A submission from the applicant’s representative dated 28 February 2023.

    b.A submission from the applicant regarding labour market testing dated 24 February 2023.

    c.A submission from the applicant regarding tasks performed by the nominee dated 24 February 2023.

    d.An employment contract between the applicant and nominee dated 27 February 2023.

17. 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.

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

18. 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 an identified person as a paid employee to work in the position under their direct control.

19. 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 nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included 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.

20. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as 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 a paid employee 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 the person identified in the application as 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 March 2023).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (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 regs 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.

21. 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 Post Office Manager. On page 5 of the application, the nominee is identified as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ an identified person as a paid employee in the position of Post Office Manager 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 the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).

22. As regs 5.19(4)(a)(i) and (ii) are met, accordingly, 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)

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

24. The applicant has provided evidence from ASIC that Mchome Group Pty Ltd, the corporate trustee of the applicant trust, is registered. The business activity statements establish that the applicant’s ABN is active, and that the applicant is registered for GST. The applicant has provided financial statements and taxation returns up to the 2021 financial year, a draft financial statement for the 2022 financial year and business activity statements to the month of June 2022.

25. The applicant’s business activity statements reveal that it recorded sales in the 2021 and 2022 financial years of $935,595 and $1,126,535 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 a Licensed Post Office.

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

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

27. 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. 

28. Ms Qi gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.

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

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

30. 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. 

31. The employment agreement dated 27 February 2023 provides that the position is full-time (38 hours per week). The position is Post Office Manager. The contract provides that the nominee’s employment is permanent and ongoing. According to the Department’s policy, these provisions satisfy the relevant regulatory requirements. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.

32. 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 salary payable to the nominee under the 2022 employment contract is $62,000 per annum plus superannuation.

33. The applicant’s business is profitable. The applicant made distributions to beneficiaries of $129,068 and $145,601 in the 2020 and 2021 financial years respectively. According to the draft 2022 financial statement, the applicant recorded a profit of $176,526 in that year. The applicant has paid salaries to the nominee of $55,238 and $50,192 in the 2021 and 2022 financial years respectively. (The lower salary paid in 2022 was attributable to the nominee taking unpaid maternity leave during the year.)

34. Although the salary to be paid to the nominee in the future slightly exceeds the salary which was paid in recent years, the profits generated by the applicant are more than sufficient to cover any increase. The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Post Office Manager 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.

35. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

36. 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.

37. The applicant does not have an Australian citizen or permanent resident performing equivalent work at the nominee’s workplace. The salary to be paid by the applicant to the nominee is $62,000 per annum. The applicant is entitled to leave in accordance with the Fair Work Act 2009 (Cth). The applicant is required to make superannuation payments on behalf of the nominee in accordance with the relevant legislation.

38. The employment agreement provides that the terms and conditions of employment are to be in accordance with, where applicable, the General Retail Industry Award. The applicant produced a recommendation from Australia Post that the position of a Licensed Post Office Manager should be classified between Level 5 and Level 8 under the Award. The applicant also produced evidence from the Fair Work Ombudsman that the award rates for these Levels range from $25.78 per hour to $28.58 per hour, equivalent to $50,914.28 to $56,474.08 per annum for a 38-hour week.

1. 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 7 March 2018, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).

2. 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.

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

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

4. 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.

5. 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.

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

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

7. 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.

8. 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.

9. 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)

10. 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, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that an RCB has advised the Minister about certain matters relating to the position.

11. The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4350 (Wilsonton, Queensland). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 407 Bridge Street, Wilsonton, Queensland 4350. 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

12. As recorded in the preceding paragraph, the Tribunal finds that the position is located at 407 Bridge Street, Wilsonton, Queensland 4350. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.

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

13. Based on the information provided to the Department, the delegate was not satisfied that this requirement had been met. The delegate’s decision was substantially based on the quality of the advertising by the applicant to fill the position.

14. Ms Qi stated at the hearing that the applicant had purchased the Wilsonton Post Office business in mid-2017. At that time, she and her husband were residing in Brisbane, and he was engaged in a real estate business. Ms Qi managed the Post Office until the end of 2017, commuting from Brisbane to Toowoomba to fulfil the duties of the role. She also assisted her husband in the real estate business. Ms Qi decided to appoint a full-time Manager in the Post Office business.

15. The nominee approached Ms Qi in 2017 regarding possible employment in the Wilsonton Post Office and was employed on a casual basis. She was appointed to the full-time Post Office Manager position in July 2018.

16. The applicant’s business is a substantial enterprise, with turnover including GST of $1,126,535 in the 2022 financial year. The Wilsonton Post Office has 887 private boxes and serves up to 600 customers per day.

17. Ms Qi was asked at the hearing why she could not fill the Post Office Manager role personally at the present time. She said that, although she now resides in Toowoomba, she still travels to Brisbane on a regular basis to attend to the affairs of a related business. She also has commitments relating to the care of her two children who were born in 2017 and 2018. She now visits the Wilsonton Post Office approximately once per fortnight on a regular basis to, in her words, chat with staff and customers.

18. The Tribunal notes that the nominee has been employed in the position of Post Office Manager since July 2018. The Tribunal has also had regard to the certificate of the RCB referred to in paragraph 39 above.

19. The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Post Office Manager 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

20. As with the preceding requirement, the delegate was not satisfied, on the basis of the information provided to the Department, that this requirement had been met. Evidence was provided to the Department that the position had been advertised, but the report relating to the recruitment campaign was limited to a general statement that only the nominee had met all the requirements of the applicant for the position.

21. The position was advertised in a local newspaper and online with SEEK in December 2017 and January 2018. The position was again advertised on the Job Search site in August and September 2020.

22. Ms Qi stated at the hearing that the applicant received a substantial number of applications following the 2017 advertising campaign. She stated that, although some of the applicants lived locally, there was no local applicant who was prepared to work full-time or had the necessary experience and qualifications to fill the position.

23. In order to establish whether the applicant had made a genuine attempt to ascertain whether there was a suitably qualified local applicant to fill the position, the Tribunal enquired why the applicant had re-advertised the position in 2020, after the nominee had been employed in the position full-time since July 2018. Ms Qi said that the nomination application had been refused in August 2019 and that consequently the nominee’s visa application had been refused in September 2019. She said that these decisions had made the applicant feel insecure about filling the position on a permanent basis. She said that, if there had been a suitably qualified local applicant, she would have employed that applicant.

24. Ms Qi stated at the hearing that only one local resident applied for the position in 2020. That applicant did have management experience but declined to attend an interview.

25. As no detailed written recruitment report had been produced to the Tribunal prior to the hearing, the Tribunal invited the applicant to provide a written report after the hearing. The applicant did provide that report, with details of approaches made by Ms Qi to existing employees in 2017 and with a comprehensive summary of the applications received in 2018 and 2020 with reasons why unsuccessful applicants were rejected.

26. The Tribunal also places weight on the certificate of the RCB referred to in paragraph 39 above. 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.

    Regulations 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

27. The occupation proposed by the applicant is Post Office Manager which has the six‑digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 142115 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in the ANZSCO for occupations in the Unit Group 1421 – Retail Managers (which includes the occupation of Post Office Manager) include:

    • determining product mix, stock levels and service standards
    • formulating and implementing purchasing and marketing policies, and setting prices
    • promoting and advertising the establishment's goods and services
    • selling goods and services to customers and advising them on product use
    • maintaining records of stock levels and financial transactions
    • undertaking budgeting for the establishment
    • controlling selection, training and supervision of staff
    • ensuring compliance with occupational health and safety regulations.

28. The applicant has provided a statement of the nominee’s tasks as follows:

    ·Performing customer sales and service transactions, to ensure the smooth operation of postal services and to comply with Australia Post Office rules and regulations,

    ·Managing high-value transaction accurately, includes handling and processing cash, cheques, credit cards, and EFTPOS, to ensure an effective, efficient and safe environment and systems,

    ·Building rewarding relationships with customers by understanding their needs, and ensure high levels of customer care within the post office and monitor business standards,

    ·Determining monthly purchase budget, product mix, stock levels, and service standards, and ensure appropriate stocking and cost,

    ·Formulating and implementing purchasing and marketing policies, and setting prices,

    ·Promoting and advertising the establishment’s goods and services, and ensure the effective promotion of the Post Office,

    ·Maintaining records of stock levels and financial transactions，

    ·Undertaking budgeting for the establishment，

    ·Undertaking recruitment, appointment, and management of staff in the Post Office, controlling selection, training and supervision of staff, and ensure appropriate training and development in place to ensure a strong effective retail team,

    ·Ensuring compliance with occupational health and safety regulations,

    ·Maintaining Post Offices presence and reputation across social networks, act as public-facing representative and communicate on behalf of our Post Office across the social media.

29. The applicant produced to the Tribunal comprehensive evidence of the range of tasks performed by the nominee in the position. The Tribunal discussed these tasks with Ms Qi at the hearing and queried whether the nominee was performing the tasks of a Post Office Manager or the tasks of a lesser supervisory role. Ms Qi gave evidence of her own present limited role in the operation of the business. She gave evidence of the nominee’s performance of various tasks listed in the ANZSCO including the setting of prices, the promotion and advertising of the business, the determining of product mix and stock levels, the undertaking of budgeting for the business and the selection, training and supervision of staff.

30. The nominee, who was not present in the hearing during the evidence of Ms Qi, gave evidence regarding the tasks performed by her in the position. Her evidence was consistent with the evidence of Ms Qi and expanded on it in certain respects.

31. Having regard to the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Post Office Manager specified by the Minister in the relevant instrument. According to the ANZSCO, the occupation is a Skill Level 2 occupation, requiring that the nominee holds an AQF Associate Degree, Advanced Diploma or Diploma. Evidence has been provided to the Tribunal that the nominee holds a Diploma of Retail Leadership, a Diploma of Business and a Diploma of Leadership and Management. The Tribunal is satisfied that the occupation is applicable to the nominee. 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

32. As set out in paragraph 49 above, the Tribunal is satisfied that the business operated by the applicant is located at 407 Bridge Street, Wilsonton, Queensland 4350, 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 regs 5.19(4)(h)(ii)(B) and (C)

33. The certificate referred to in paragraph 39 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.

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

35. 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

36. 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 an identified person, as 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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).