The Trustee for Shri Ram Family Trust (Migration)

[2022] AATA 29

The Trustee for Shri Ram Family Trust (Migration) [2022] AATA 29 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Shri Ram Family Trust

CASE NUMBER:  1837858

HOME AFFAIRS REFERENCE(S):          BCC2017/2003824

MEMBER:Terrence Baxter

DATE:5 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 05 January 2022 at 9:48am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream –genuine need for position – retail manager – most tasks performed by owners – owners’ other business interests, employment and family commitments – nominee not employed for extended period when applicant was in financial position to do so – reduced operations during COVID-10 pandemic – advice of regional certifying body not determinative – joint hearing with review of refusal of nominee’s visa application – decision under review affirmed

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

CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 13 December 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 (Cth) (the Regulations).

2. The applicant, the Trustee for the Shri Ram Family Trust, applied for approval on 6 June 2017. The applicant nominated Mr Dilbag Singh Bhullar (the nominee) in the position of Retail Manager. 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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 December 2018.

6. Mr Manish Patel, the sole trustee of the applicant Trust, appeared on behalf of the applicant before the Tribunal by video conference on 6 October 2021 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.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. 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.

8. The applicant was initially represented in relation to the review by its migration agent, Yohsuke Kanno of Migration Guru Pty Ltd. From 29 August 2019, the applicant was represented in relation to the review by Mr Surenthren Mathavan of Migration Guru Pty Ltd. Mr Mathavan attended the Tribunal hearing by video conference.

9. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 prior to the hearing

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

    a.A business plan for the applicant.

    b.The discretionary trust deed establishing the Shri Ram Family Trust.

    c.A job advertisement for the position.

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

    e.A current ABN Lookup form for the applicant, ABN 88 736 954 750.

    f.Market salary evidence.

    g.An employment contract of the nominee dated 12 April 2017, including a job description for the position.

    h.An organisational chart.

    i.Payslips of the nominee for the period from March to May 2018.

    j.An Australian Taxation Office integrated client account statement of the applicant accessed 28 November 2017.

    k.Activity statements for the applicant for the period from October to December 2017.

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

    a.A copy of the delegate’s decision.

    b.Profit and loss statements for the 2020 and 2021 financial years.

    c.Balance sheets for the 2020 and 2021 financial years.

    d.Trust tax returns for the 2019 and 2020 financial years.

    e.An income statement of the nominee for the 2020 financial year.

    f.A PAYG payment summary of the nominee for the 2019 financial year.

    g.Submissions from Mr Patel dated 23 August 2021.

    h.A copy of the discretionary trust deed previously produced to the Department.

    i.A copy of the employment contract and position description previously produced to the Department.

    j.A current ABN Lookup form for the applicant’s ABN.

    k.A Form 1404 issued by the Regional Certifying Body (RCB), Queensland Chamber of Commerce and Industry, Toowoomba, dated 24 May 2017.

    l.A layout plan and photographs of the business premises.

    m.Market salary evidence.

    n.Activity statements for the applicant for the period from July 2020 to June 2021.

    o.An ASIC current and historical company extract for the company Siyana Pty Ltd.

    p.A lease of business premises in favour of Siyana Pty Ltd.

    q.Submissions from the representative dated 30 September 2021 and 5 October 2021.

    r.An employment contract of the nominee dated 1 October 2021, including a job description for the position.

    s.A job advertisement for the positions of retail assistant and takeaway staff for the applicant’s business.

    Evidence presented at the hearing regarding the applicant’s operations

13. Mr Patel gave evidence regarding the business operations of the applicant. He said that the Trust operated the business known as the Peachester Store and Peachester Aroma Café. He said that he had been involved in running the business since approximately 2015. He said that the applicant Trust was established on 2 February 2017 and that the business had been operated by another trust prior to that date. He said that this business was the only business operated by the applicant.

14. Mr Patel stated that Peachester is located on the Sunshine Coast of Queensland. He said that the business usually operated between 6:00 AM and 6:00 PM daily, but that trading hours had recently been reduced. He attributed the reduction in trading hours to staff shortages caused by the COVID-19 pandemic and to his being required to attend to another business which he had recently established in Brisbane.

15. The nominee gave evidence that he had previously been employed by the applicant in the position of Retail Manager, but that he was not employed in that position at the time of the hearing.

    Evidence presented after the hearing

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

    a.Submissions from the representative dated 27 October 2021.

    b.An ASIC business name registration for Peachester Aroma Café.

    c.A complete draft financial report for the 2021 financial year.

    d.An email from the applicant’s previous accountant.

    e.A payslip of the nominee dated 20 October 2021.

    f.Evidence of rental receipts paid by the applicant for the Peachester business premises.

    g.An unexecuted lease of the applicant’s business premises at Peachester.

    h.An updated organisational chart.

    i.Evidence of the applicant’s payment of the nominee’s superannuation entitlements.

    j.Correspondence and a further copy of the Form 1404 issued by the RCB.

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

17. 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.

18. 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 postcode where the position was to be filled was 4519. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 24 Coochin Street, Peachester, Queensland, 4519. 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)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control

    The documentary evidence available at the hearing

19. The applicant produced to the Tribunal financial statements for the 2019 to 2021 financial years and copies of the nominee’s PAYG payment summary and Income Statement for the 2019 and 2020 years. The following table records relevant information from those documents:

Financial year	2019	2020	2021
Sales	$546,998	$589,820	$726,944
Net profit	$50,956	$78,971	$130,735
Total wages paid	$50,012	$16,156	$3,122
Nominee salary	$50,012	$16,156	$0

1. The applicant also produced an ASIC current and historical company extract for the company Siyana Pty Ltd. This document reveals that Mr Patel is the sole director of that company and that he and Ms Priyaben Manish Patel are equal shareholders in the company. Mr Patel confirmed at the hearing that Ms Patel is his wife. The applicant also produced a lease of premises situated in Seventeen Mile Rocks, Queensland in favour of that company for a term which commenced on 27 October 2020.

2. In a submission dated 30 September 2021, the representative submitted that the nominee had worked for the applicant as Retail Manager until June 2020. He submitted that, due to uncertainty with the visa application process, the nominee left the applicant’s employment, and that the nominee was now ready to resume his position within the business should the visa be granted. The representative submitted that the position of manager of the store was currently being filled by Mr Patel and his wife, along with another business interest that they were managing in Seventeen Mile Rocks.

3. The employment contract dated 1 October 2021 provides for the employment of the nominee in the position of Retail Manager, with employment to commence on the grant of the nominee’s visa.

4. The applicant provided a copy of the advice from the RCB that the nomination satisfied the requirement that there is a need for a paid employee in the nominated position within the business activities of the applicant.

   Evidence and submissions at the hearing regarding the genuine need for the position

5. Mr Patel gave evidence confirming the earlier submission from the representative that the company Siyana Pty Ltd had established a retail seafood business in Seventeen Mile Rocks, Queensland in October 2020. As recorded previously in these Reasons, that company is owned by Mr Patel and his wife. Mr Patel said that he and his wife had tried to manage both businesses previously. He said that his wife also works as a Registered Nurse and that they have two children, one attending school in grade 3 and one aged 18 months. He said that it was becoming very difficult to continue to manage both businesses.

6. Mr Patel stated that Peachester was located approximately one and a half hours by car from his residence in Brisbane. He said that the seafood business was located 30 to 35 minutes by car from his residence. He said that he was travelling to Peachester every day and that, if he was able to employ the nominee as Retail Manager, he could devote more time to the other business. He further stated that it had become necessary for him to reduce the opening hours in the Peachester business because of his commitment to the other business. He said that it had been necessary for him to close the store at 3:00 PM or 4:00 PM and that this was difficult for local customers.

7. Mr Patel confirmed that there was no Retail Manager working for the applicant in the Peachester business as at the date of the hearing. He stated that the nominee had previously been employed in that position at Peachester. When asked when the nominee had ceased full-time employment, he stated that the full-time employment ceased in June 2020. Mr Patel was asked to explain that evidence when, according to the 2020 profit and loss account, the total wages paid by the business for that year were only $16,156. He originally stated that he was not sure of exactly what had happened with the nominee’s employment. He said that the low wage figure may have been related to the COVID-19 pandemic as well.

8. The Tribunal pointed out to Mr Patel that, according to the nominee’s PAYG payment summary for the 2019 financial year, he had earned wages of $50,012 in that year, so that his wages in 2020 were less than one-third of his wages in the previous year. Mr Patel agreed that the COVID 19 pandemic would only have affected the employment of the nominee for approximately one-third the financial year at the most. He then stated that the nominee had taken unpaid leave for several months when he travelled overseas to be married.

9. The Tribunal noted that, according to the financial statements, the total wages paid by the business in the 2021 financial year were $3,122. Mr Patel stated that these wages were paid to casual staff. He said that he was not aware of the nominee’s employment status during that year.

10. Noting that the Trust had increased its net profit from $50,956 in the 2019 financial year to $130,735 in the 2021 financial year, the Tribunal asked Mr Patel why the Trust had not employed the nominee on a full-time basis throughout that period when it was making profits. He stated that he did not know what the nominee’s intentions were regarding employment or obtaining a permanent visa. He said that it had been the nominee’s decision to leave the applicant’s employment in 2020. He also said that, because of the pandemic, the Peachester business was not doing that well and that he could not afford to pay the nominee full-time at that period.

11. Referring to Mr Patel’s claim regarding low trading figures, the Tribunal pointed out to him that, according to the financial statements, sales at the Peachester business increased from $589,820 in the 2020 calendar year to $726,944 in the 2021 financial year. He said that things were now getting better in 2021.

12. Later in the hearing, when asked why the applicant had not employed the nominee when the seafood business was opened in October 2020, Mr Patel repeated that he was not aware of the nominee’s intentions at that time. He also stated that he had a staff member at the seafood business who was reliable and was helping him with managing that business. He said that this had assisted him when both businesses were being adversely affected by the pandemic. He stated that business was now picking up and that he wished to re-employ the nominee at Peachester so that he could concentrate on the new business.

13. Noting that the business had recorded sales of almost $410,000 in the period from July to December 2020, that the new business had been opened in October 2020 and that the Peachester business recorded a profit of over $130,000 in the 2021 financial year, the Tribunal again asked Mr Patel why he had not approached the nominee to work in the position during that financial year. He repeated that the nominee had chosen to leave the position, and, for that reason, he was hesitant to contact the nominee to enquire whether he wished to return to work.

14. Mr Patel stated that, if the application is approved, the applicant would need to employ at least three full-time employees including a manager, a supervisor and at least one or two other staff. He said that he would need to employ a total of four or five employees to cover employment requirements for a full week.

15. The Tribunal expressed its concern to Mr Patel that, having regard to the failure by the applicant to employee a Retail Manager during a period when it appeared that the Trust had the financial capacity to fill the position, the applicant may have failed to demonstrate that there was a genuine need for the position. He responded by referring to the difficulty in finding a suitable candidate for the position and said that he had asked his wife to help with the business until he could find a suitable manager for the position. He then referred to the nominee’s application for a permanent visa and said that the nominee was now prepared to accept the position. He said that the nominee had the opportunity to obtain a full-time job and permanent residency. He said that both he and the nominee had “thought again” about the nominee accepting the position.

16. Mr Patel was asked why the applicant had employed only limited casual staff in the 2021 financial year. He stated that the reason for not employing permanent staff was the pandemic, when the store was not that busy. He repeated that he had requested his wife to help out during that difficult period.

17. Mr Patel agreed that in the 2019 financial year the nominee was the only employee of the business. He said that, at that time, he operated only one business and that he had wanted to provide training to the nominee.

18. The nominee was not present while Mr Patel gave his evidence. He originally stated that he had been employed full-time at the Peachester store for approximately two and a half years from late 2017 to June 2020. When the Tribunal suggested to him that his evidence was not supported by his Income Statement for the 2020 financial year, which indicated that he had earned a gross income of only $16,156 for that year, the nominee stated that he had taken unpaid leave for approximately two and a half months between January and March 2020 to be married.

1. The nominee stated that he had worked full-time until the month of January 2020. The Tribunal suggested to him that, based on his income of over $50,000 in the previous financial year, he would have earned more than $16,156 for over six months’ full-time work. He first stated that he did not have an explanation for the discrepancy. When urged by the Tribunal to provide an explanation, after a significant hesitation, the nominee then stated that he had also taken unpaid leave prior to January 2020.

2. The nominee stated that he had not returned to work after returning from India because Mr Patel had told him of difficulties associated with the pandemic and that he (Mr Patel) would manage the business and would contact the nominee again when matters were sorted out. He said that he was also experiencing frustration with his visa situation and that he decided to explore other options. He started applying for work as a chef so that he could obtain experience in the hospitality business. He said that he had obtained work as a chef.

3. The nominee said that during 2020 he had spoken with Mr Patel who had told him how the business was going. He said that approximately three months before the hearing Mr Patel had told him that things were picking up and that he was considering re-employing him. He then referred to receiving notification from the Tribunal as well.

4. Noting that, as at the date of the hearing, the nominee had not recommenced employment with the applicant, the Tribunal asked the nominee why, after speaking with Mr Patel some months earlier, he had not applied for immediate reinstatement in the position of Retail Manager. He stated that in recent months he had been considering that option. He also said that he was continuing to gain experience as a chef.

5. After the nominee had concluded his evidence, Mr Patel stated that after the nominee had returned from India in 2020, the nominee was looking at other options to obtain full-time work and work rights in Australia. He said that there were many things happening in the nominee’s life at that time and he was confused. He said that, more recently, the nominee had contacted him to seek re-employment as a Retail Manager. Mr Patel stated that he told the nominee that he would think about the nominee’s request and that he had then decided to re-employ the nominee as manager of the Peachester store.

   Submissions and evidence received after the hearing

6. After the hearing, the applicant produced a payslip which indicates that the nominee had been employed by the applicant as manager of the store for at least the period from 6 October 2021 to 19 October 2021. The applicant also produced an organisational Chart which records the nominee as Retail Manager and provides for employment of one full-time shop assistant and to part-time shop assistants. The applicant has not provided evidence that any of the shop assistant positions have been filled.

7. The representative submitted that the nominee has resumed his employment with the business recently. He submitted that due to the uncertainty of the visa pathway and his ability to remain in Australia, the nominee had considered pursuing another career pathway, but that the parties had decided that the nominee would resume his position to free up Mr Patel so that he could focus on his other business in Brisbane.

   Consideration of the evidence and submissions

8. At the hearing, the Tribunal expressed to Mr Patel its concern that the evidence presented by the applicant did not satisfy the requirement that there is a genuine need for the applicant to employ a paid employee in the position of Retail Manager.

9. Neither Mr Patel nor the nominee were impressive witnesses on the question of the nominee’s prior employment by the applicant. Mr Patel initially stated that the nominee had been employed full-time as Retail Manager until June 2020. When asked by the Tribunal to explain how the nominee could have earned only $16,156 in the 2020 financial year if he was in full-time employment, he initially stated that he was not sure of the details of the nominee’s employment and that his reduced salary may have been connected with the COVID-19 pandemic. Finally, he conceded that the nominee had taken unpaid leave to travel to India to be married.

10. The nominee initially stated that he had been employed full-time for approximately two and a half years from late 2017 to June 2020. When asked regarding his reduced income in the 2020 financial year, the nominee first stated that he had taken approximately two and a half months’ leave to travel to India to be married. When further questioned regarding the significant reduction in his income in the 2020 financial year, the nominee said that he could offer no explanation and finally, after significant hesitation as previously recorded in these Reasons, conceded that he had taken further leave during that year.

11. The evidence confirms that the applicant employed the nominee on a full-time basis throughout the 2019 financial year. The applicant continued to employ the nominee for part of the 2020 financial year. The exact periods of the nominee’s employment in that year are not known and the evidence from Mr Patel and the nominee in this regard has not been helpful. However, it is clear that the applicant paid wages of only $16,156.02 to the nominee during that year. Based on the salary paid to the nominee in the preceding year, this is equivalent to less than one-third of full-time employment in the 2020 financial year. The nominee did not recommence employment with the applicant prior to the hearing on 6 October 2021. According to the payslip produced after the hearing, the nominee’s employment commenced on the day of the hearing.

12. Mr Patel and his wife began operating a second business (through an entity different to the applicant Trust) in October 2020. That business had been operating for almost 12 months before the hearing and the nominee had not recommenced employment in the position during that period.

13. Mr Patel made several claims regarding the genuine need for the position. These can be summarised as follows:

    a.That, although he and his wife had tried to manage both businesses previously, it was becoming very difficult to manage both businesses as a result of his wife’s occupation as a Registered Nurse and their family commitments.

    b.That he had been forced to reduce the opening hours in the Peachester business because of his commitment to the seafood business.

    c.That he had requested his wife to assist with the Peachester business until he could find a suitable manager.

    d.That one of his reasons for deciding not to re-employ the nominee after his return from India was that the business was not doing well as a result of the COVID-19 pandemic.

14. The Tribunal does not accept that these claims support the genuine need for the position, for the following reasons:

    a.Dealing with claims (a) and (c) above, the Tribunal notes that the Peachester store operated without an employed manager from before June 2020 until late October 2021. Mr Patel stated that his youngest child was aged 18 months the time of the hearing. Accordingly, that child would have been born mid-2020 and there is no evidence before the Tribunal that the family commitments of himself and his wife altered during that time. The applicant had ample opportunity to attempt to fill the position of Retail Manager prior to October 2021. Mr Patel stated that he had relied on an employee of the seafood business to assist with the management of that business after it was established in October 2020. The Tribunal considers that Mr Patel made a deliberate decision not to employ a Retail Manager in the Peachester store for this extended period of time. This is not consistent with there being a genuine need for the position.

    b.Dealing with claim (b) above, it may well be the case that Mr Patel has chosen to reduce the opening hours of the Peachester store. The Tribunal considers that this is more likely to be a result of Mr Patel’s decision not to employ more than the very limited staff who were employed during the 2021 financial year, as evidenced by the total wages cost of $3,122 in that year.

    c.Dealing with claim (d) above, the Tribunal considers that this claim is not supported by the financial evidence. The applicant’s activity statements confirm that the business recorded sales of $409,823 from July 2020 to December 2020 and that the applicant recorded a net profit of $130,735 for the full financial year. These figures are substantially better than the comparable figures in the preceding year.

15. The timing of the nominee’s re-employment causes the Tribunal to doubt that there is a genuine need for the applicant to employ a paid employee in the position. Both Mr Patel and the nominee agreed that it had been the nominee’s decision not to recommence his employment as manager of the Peachester store following his return from India in early 2020. Indeed, according to Mr Patel, the fact that the nominee had chosen not to return to his employment with the applicant was one of the reasons for Mr Patel not approaching the nominee to request him to return to the position. When giving evidence after the nominee had given his evidence, Mr Patel stated that it had been the nominee who had contacted him shortly prior to the hearing seeking reinstatement to the position. The Tribunal considers that, if the applicant genuinely needed to employ a Retail Manager in the business, Mr Patel would have prevailed upon the nominee to return to the position earlier than late October 2021.

16. At the hearing, both Mr Patel and the nominee made several references to the nominee’s immigration status and visa application. When asked why the nominee had not recommenced his employment with the applicant as at the date of the hearing, Mr Patel made reference to the nominee’s visa application and said that the nominee was at that stage prepared to accept re-employment in the position. He spoke of the nominee’s opportunity to obtain a full-time job and permanent residency. Later, when discussing the nominee’s decision not to return to the position after June 2020, Mr Patel said that the nominee was looking at other options for full-time work and work rights in Australia. During his evidence, the nominee spoke of his frustration with his visa application and his desire to explore other options for employment. He stated that he sought and obtained work as a chef so that he could obtain experience in the hospitality sector. He also referred to receiving notification from the Tribunal at about the time that he contacted Mr Patel regarding a return to his position as Retail Manager.

17. These references to the nominee’s visa application reinforce the Tribunal’s concern that the applicant has not demonstrated a genuine need to employee the nominee in the position of Retail Manager. The evidence suggests that the nominee’s return to work in the position on or after the date of the hearing is an attempt to achieve a favourable migration outcome for the nominee rather than to fill a genuine vacancy in the position.

18. The Tribunal acknowledges that a certificate of the RCB, the Queensland Chamber of Commerce and Industry, Toowoomba, dated 24 May 2017, has been produced. The certificate is required under reg 5.19(4)(h)(ii)(F) which requires that the relevant body has advised the Minister about certain matters, including that there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control. In the present case, the RCB has certified that it has assessed the nomination against the requirement that there is a need for a paid employee in the nominated position within the business activities of the nominating employer and advises that the nomination satisfies the requirement.

19. This certificate may satisfy the requirement under reg 5.19(4)(h)(ii)(F) referred to above, but the Tribunal must consider and be satisfied on the matters about which the advice is provided. The advice is relevant to the Tribunal’s considerations but is not conclusive. In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, the Court considered a similar requirement in a pre-July 2012 version of reg 5.19(4), and commented obiter that the use of the word “advice” undoubtedly puts beyond doubt the construction of reg 5.19(4), i.e., the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative. In the present case, the Tribunal considers that the advice of the RCB is outweighed by the lack of evidence to support a genuine need for the applicant to employ the nominee in the position as previously set out in these Reasons.

20. Having regard to all of the evidence, including the RCB advice, the Tribunal finds that the applicant has not established that there is a genuine need for the applicant to employ a paid employee to work in the position of Retail Manager under the applicant’s direct control. Accordingly, the requirement in reg 5.19(4)(h)(ii)(B) is not met.

21. Accordingly, the requirements of reg 5.19(4)(h) are not met.

22. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

23. The Tribunal affirms the decision under review to refuse 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).