The Trustee For WCL Trust (Migration)

[2020] AATA 2558

The Trustee For WCL Trust (Migration) [2020] AATA 2558 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for WCL Trust

CASE NUMBER:  1726067

DIBP REFERENCE(S):  BCC2017/2000883

MEMBER:Danielle Galvin

DATE:15 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 April 2020 at 10:07am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – failed to identify a need for a paid employee to work in the position– insufficient evidence of a need for a further practitioner – decision under review affirmed

LEGISLATION
Migration Regulations 1994, r 5.19

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 Immigration on 3 October 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 6 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.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 r.5.19(4)(a)(ii) of the Regulations because the nomination failed to identify a need for a paid employee to work in the position under the direct control of the nominator.

5. The Tribunal received the following documents from the Department:

   ·The application to the Department dated 6 June 2017 for the Employer nomination scheme for a visa subclass 186, Direct Entry by The Trustee For WCL Trust, trading as Your Law Firm Williamstown Commercial (ABN: 33797611337) in the industry type of Professional, Scientific and Technical Services. The position is for a Solicitor in the occupation of Solicitor (the ANZSCO CODE was not provided). It is stated that there is no Australian employee doing the same work. The salary per annum is stated to be $55,500. It further stated that there is 1 Australian employee in the business and no foreign employees. It notes that there is only 1 professional person employed. The gross payroll expenditure in the past 12 months is alleged to be $103,737 and the gross expenditure on training Australian citizens and permanent residents in the past 12 months is claimed to be $2282, the industry training fund being Victoria University Scholarship Fund;

   ·ABN Lookup as at 30 May 2017, ABN 33 797 611 337, the entity being The Trustee for WCL Trust, the business being Your Law Firm Williamstown Commercial;

   ·Trust Deed for the WCL Trust naming the Trustee as Williamstown Commercial Lawyer Pty Ltd ACN: 163 372 156;

   ·Organisational chart naming the Principal Solicitor as Meda Royall (Australian) and Imran Warraich) as an employee solicitor;

   ·Donation confirmation from Victoria University from Williamstown Commercial Lawyers. States that it is a one-off donation made on 5/6/17 for Student Welfare Support but does not state an amount;

   ·BAS for The Trustee for WCL Trust for the period 1/1/17-31/3/17, noting sales at $33,663, $0 for wages;

   ·Position Description for Solicitor, entitled Annexure A describing the provision of legal services as including in relation to immigration and commercial law matters, meeting with client, drafting legal documents, research, representing clients in Court and liaising with barristers, conducting negotiations, preparing, reviewing and analysing contracts between parties for clients, providing advice and managing files;

   ·table of median starting salaries for bachelor degree graduates in first full-time employment listing law as $55,000;

   ·Financial statements for Your Law Firm Williamstown Commercial for 6/6/16 -5/6/17. Noting income as $103,737 but nothing noted for wages. Incomplete document;

   ·Advertisement dated 24/5/17 for a Solicitor through SEEK for family Law in Sunshine;

   ·Extract of Legal Services Award 2010 noting that the minimum wage for a law graduate is $861.30 per week;

   ·Employment agreement between Williamstown Commercial Lawyers Pty Ltd and Imran Warraich dated 16/5/17 noting that the commencement date is to be confirmed  on a base salary of $55,500 plus super attaching Annexure A, Position description;

   ·List of Graduate Salaries in relation to various universities stating that a graduate salary on average in law is $49,504;

   ·Letter from Victoria University Foundation dated 8 June 2017 to Williamstown Commercial Lawyers thanking them for donation for Victoria University Foundation Scholarship Fund noting that “In accordance with the requirements of Training Benchmark A, this contribution must be paid each fiscal year while the employee is on a visa and must always be 2% of the wages expenses.” It records the donation of $2282.50 on 5/6/17;

6. The Tribunal is in receipt of the following other documents:

   ·Application for review dated 24 October 2017 which attached the decision record of the Department;

   ·Appointment of a representative for the applicant, The Trustee for WCL Trust, being the nominee Imran Nawaz Warraich.

7. The Tribunal wrote to the applicant on 18 October 2019 inviting it to provide updated information in support of the application. A response was required by 1 November 2019. On that date the applicant provided the following documents:

   ·Current organisational structure stating that Meda Royall is the principal solicitor and Madelaine Scheiner and the nominee are Solicitors;

   ·Financial statements for Williamstown Commercial Lawyers Pty Ltd FYE 30/6/18 showing income of $177,729.67, wages of $9,230.79 unsigned and undated. The document notes “Williamstown Commercial Lawyers Pty Ltd AFT, as trustee for, WCL Trust;

   ·Financial statements for Williamstown Commercial Lawyers Pty Ltd AFT WCL Trust FYE 30/6/17 show income for year as $108,362 and wages as $9,190 unsigned and undated;

   ·ASIC extract for Williamstown Commercial Lawyers Pty Ltd ACN: 163 372 156

8. The Tribunal received an appointment of an authorised recipient for the applicant dated 3 October 2019 signed by the nominee in his capacity as “employee” which did not provide a registered migration agent number. The document requested that mail be sent to an email address of the nominee and a private address. The document is not signed by Ms Meda Royall, the sole director of the applicant, nominator, but by the nominee and purports to be the appointment of an agent in this matter. The Tribunal notes that the nominee is not a registered migration agent nor an employee

9. On 10 December 2018 the Tribunal contacted Ms Royall who advised that all correspondence was to be sent to the applicant.

10. The applicant appeared before the Tribunal on 17 December 2019 to give evidence and present arguments. The Tribunal received oral evidence from Ms Meda Royall, the principal solicitor of the applicant. At the hearing Ms Royall stated that the nominee was not currently working for her firm and had ceased employment with the company in October 2018 as a result of the Department’s decision. She stated that he had commenced working with the company in July 2017. Further, Ms Royall advised that the nominee was now working with HUK Legal Service Inc. Ms Royall described her business historically as a franchise operation which went by the name of “Your Law Firm Pty Ltd” and was established in 2014. However, she stated that this business ceased trading about one year ago. She stated that she returned to practice as a solicitor in 2017 resolving to build the practice. However, Ms Royall then stated that her role was that of office manager rather than as a practitioner.

11. Ms Royall stated that in June 2017 Mr Warraich commenced work with her as a graduate solicitor on a salary of $55,000 full time per annum plus super. The figure in the application to the Department was $55,500. She stated that he was only employed for a period of 3 months. However, she further stated that he assists at her firm from time to time on an hourly rate. The applicant did not submit supporting evidence of the attendances at the applicant’s firm nor evidence of the work that he undertook whilst employed there. Ms Royall stated that the nominee was employed to perform property and commercial work and to develop migration work as he had an immigration background. Evidence of these claims was not submitted to the Tribunal by the applicant. She stated that a solicitor, Ms Schneider, was engaged to undertake commercial and property work and that there is now no practice in immigration work since the nominee’s departure. The applicant did not submit evidence of the migration work undertaken by the nominee whilst employed nor provided any other evidence supporting these assertions.

12. Ms Royall stated that Ms Schneider commenced work with the firm in June 2018.

13. Ms Royall stated that she wishes to expand into immigration work and needs a lawyer to undertake this work. She stated that currently she refers immigration work enquiries to Paul Smith Solicitors in Saint Kilda Road Melbourne. However, she conceded that there had been no such referrals for 18 months. The Tribunal therefore places little weight on this evidence as it is not supported by the evidence received and given, there being a lack of any further evidence to support the interest in pursuing a desire to establish a migration section of the practice. Ms Royall stated that she is the director and principal solicitor of the company but predominantly acts as the firms’ manager attending the firm’s offices 4 days a week. She stated that Ms Schneider, a second year graduate, attends to the lions share of legal practice. She stated that she does not draw a salary but rather keeps the profits of the firm. The Tribunal pointed out that in the application to the Department it had been claimed that the amount spent on wages in the previous 12 months before the application was $103,737. The date of the application was 6 June 2017 and the financial statement submitted for the period 6/6/16-5/6/17 states that income for that period was $103,737 and $0 for wages. Ms Royall did not provide a satisfactory explanation as to why she had declared the wages for the 12 months preceding the application was incorrect when referenced to the financial statement for the period. It appears that the income of the business has been inaccurately provided as the amount of wages paid in the application. The Tribunal therefore places little weight on this evidence to support the claim that there is a need to pay a paid employee to work in the position due to it’s inconsistent nature.

14. The Tribunal heard evidence from the nominee, Mr Warraich, who could not explain why he had claimed to be the migration agent of the company in respect of the review, nor why he had requested that all correspondence be sent directly to himself and not the applicant. Mr Warraich acknowledged that he was not a registered migration agent. Ms Royal stated that she had no knowledge that the nominee had held himself out to be the company’s agent.

15. Ms Royall gave evidence that she, as the authorized officer of the company, being its sole director, had not instructed the nominee to act as agent for the company. Ms Royal stated that a Ms Schneider was the only salaried employee of the firm from June 2018 to date, on a salary of about $50,000 or $60,000. The Tribunal places little weight on the evidence in the context of the application as there is a failure to establish that the nominee is working under the direct control of the nominator.

16. Ms Royall stated that the nominee signed the employment contract although he was not working for her at that time. The Tribunal enquired as to the current relationship between the company and the nominee. The nominee stated that he spoke with Ms Royall every couple of months to see how the company was going. Ms Royall stated that she had referred 2 migration files to the nominee at HUK Legal Inc.

17. Mr Watrraich gave evidence that he is the sole director of HUK Legal Services Pty Ltd dated (ACN:619188091) with a business operating as HUK Legal Services (ABN: 85619188091). He stated that he employs 3 lawyers and he is the principal practitioner. He stated that his business has a focus on immigration and that he receives a salary from his business.

18. He stated that he established his company and business when he ceased working for the nominator in October 2018. He stated that a Robert Zucca is employed at his business as a migration lawyer and that Mr Warraich supervises his employees.

19. The Tribunal allowed the applicant time to submit further material and on 31 January 2020 the following documents were received.

    ·A letter from Roberto Zucca from HUK Legal Services Pty Ltd dated 31 January 2020 submitting that he represents the applicant;

    ·Appointment of Roberto Zucca from HUK Legal Services Pty Ltd on 31/1/20 to act as agent for the applicant providing his registered migration agent number as 1912394.

    ·An email and associated documents copied to HUK from DLA Piper attaching consent orders in an unrelated migration matter dated 24 January 2020, the relevance of which is unclear, however, there is no evidence to suggest that it pertained to a matter referred to the nominee’s firm by the nominator;

    ·A further copy of the employment contract between the applicant and the nominee dated and signed 5 June 2017 noting the name of the company as Williamstown Commercial Lawyers Pty Ltd, ACN: 163372156, and the body of the document referring to “the company”;

    ·Letter from Victorian Legal Services Board dated 24 August 2018 to the nominee personally granting the nominee exemption from the supervised legal practice;

    ·Letter from Victorian Legal Services Board dated 7 July 2017, to the nominee personally, attaching the nominee’s practising certificate dated 29 May 2018 and addressed to the nominee personally. The nominee is authorised, as practitioner number P0042818, to engage in legal practice from 4 July 2017 to 30 June 2018 as an employee of a law practice and is not authorised to receive trust money and is subject to the condition of supervised legal practice;

    ·Letter from Victorian Legal Services Board dated 29 May 2018 to the nominee attaching the nominees practising certificate  authorising the nominee to engage in legal practice from 1/7/18-30/6/19 as an employee of a law practice and is not authorised to receive trust money and imposing the condition that the holder engage in supervised legal practice only;

    ·Letter from the Victorian Legal Services Board to the nominee dated 15 May 2019 attaching the nominees practicing certificate for 1/7/19-30/6/20 as a principal of a law practice and is not authorised to receive trust money. No conditions are recorded;

    ·Nominee’s authorisation to practice in the High Court dated 4 August 2017;

    ·Statutory Declaration of the nominee declared on 19/8/18 declaring that he was employed by Your Law Firm Williamstown Commercial from 4/7/17-30/6/18 and was supervised for 11 months and 26 days on “ad hoc basis…usually weekly in person and if required through email and over the phone.” He declares that he worked for Your Law Firm Geelong from 1/7/18 to date (being the date of the declaration). He further declares that he joined the Williamstown firm as a full-time employee up to September 2017 and thereafter worked part time and was un-paid.;

    ·BAS of applicant Jan 2016-March 2016 showing amount paid in salaries was $865 and sales $9081;

    ·BAS of applicant for April 2016-June 2016 sales $15,948, wages $0;

    ·BAS for applicant July 2016-September 2016 sales $4775, wages $0;

    ·BAS for applicant October 2016-December 2016, sales $2333, wages $0;

    ·BAS for applicant 1/1/17-31/3/17, sales $33663, wages $0;

    ·BAS for applicant APRIL 2017-June 2017, sales $36,709, wages $0;

    ·BAS for applicant July 2017-Sept 2017, sales $51,932, salaries $8538;

    ·BAS for applicant Oct 2017-Dec 2017, sales $45,582, wages $0;

    ·BAS for applicant Jan 2018-Mar 2018, sales $42,788, wages $0;

    ·BAS for applicant April 2018-Jun2018, sales $54,303, wages $0;

    ·BAS for applicant Jul 2018-Sept 2018, sales $95,921, wages $19,073;

    ·BAS for applicant Oct 2018- Dec2018, sales $70,229, wages $13,462;

    ·Transaction details of online deposit from WCL office account on 31/1/18 re nominee for what appears to be Workcover of $214.50;

    ·Allianz Workcover registration for Williamstown Commercial Lawyer Pty Ltd dated 26/8/17;

    ·Williamstown Commercial Lawyers ATFT Trust t/as Your Law Firm Williamstown from 1/7/18-30/6/19 for Ms Madeleine Scheiner;

    ·Williamstown Commercial Lawyers ATFT Trust t/as Your Law Firm Williamstown from 1/7/17-30/6/18 for nominee from 14/8/17-25/9/17 and Ms Scheiner;

    ·Bundle Superannuation payments for Ms Scheiner;

    ·Quicksuper contribution report for nominee for 1/7/17-30/9/17;

    ·Donation confirmation from Victoria University for Williamstown commercial lawyers 5/6/17 and letter dated 8/6/17;

    ·bundle of academic documents of nominee;

    ·Undated Submission by “Ms Royal”, (name spelt differently) Principal Solicitor, for the applicant, in support of the nomination application refused on 3/10/17. The submission claims, without reference to specific evidence, that the firm was unable to source a suitable solicitor locally and because the nominee had experience in immigration matters he was the only suitable candidate. Attached was an unverifiable profit and loss statements for 1/7/19-30/6/20 claiming income at 30/6/20 of $127,233, wages $34746, 30/6/19 income as $287,298, wages as $62,762, 30/6/18 income as $177,730, wages as $9231 and 30/6/17 income as $110,746, wages as $9190. The applicant did not submit any evidence of advertising for the nominee’s role.

20. On 11 February 2020 the Tribunal wrote to the applicant requesting that it comment on or respond to the nominee’s evidence at hearing that he is the principal practitioner of HUK Legal Services Pty Ltd and information that Ms Meda Royall was the sole director of HUK Legal Services Pty Ltd from its registration on 18 May 2017 until 27 September 2018 when the nominee was appointed co-director of that company with an unrelated third party. The Tribunal stated that this information suggested that the nominator was aware that the nominee was establishing an independent legal practice at the time of the Department’s decision and that it is a requirement for the grant of the nomination that the nominator identify a need for a paid employee to work in the position under the direct control of the nominator. A response was required by 25 February 2020.

21. On 25 February 2020 the agent for the applicant submitted the following documents:

    ·Submission of Robert Zucca, Solicitor with HUK Legal Services Pty Ltd, the authorised migration agent, pursuant to an appointment dated 31 January 2020. The submission states that the nominee commenced his legal practice on 16 October 2018 having received an exemption from supervision. The Tribunal notes that the condition on the nominee’s practicing certificate to practice under supervision was not removed until the grant of the practicing certificate for 2019-2020.  It was submitted that previously the nominee held a practising certificate which required supervision. It is submitted that due to the passage of time and the need to earn an income following the Department decision the nominee commenced his legal practice It is further submitted that the nominee’s position remains open in the nominated role. The Tribunal notes that it did not receive a satisfactory explanation as to why the nominee left the applicant’s employment given the asserted need for him to be  employed to expand the firm’s migration practice. At this point the nominee was required to be supervised in practice, and despite this, proceeded to create an independent law firm and set himself up as the principal of it and employ 3 solicitors that required supervision. Given that the nominee was required to be supervised this conduct does not support the assertion that there is a need for the nominator to employ a paid employee to work in the position. Further, it was submitted that the nominee’s law firm employs 3 supervised employees, however, the employees have never been paid as the nominee’s company “is not financially able to do that. No explanation was provided as to the future of these employees, that require supervision, if the nominee left his own firm to return to the applicant’s employment. The arrangement whereby the nominee’s employees are performing supervised tasks and not being paid is a matter for the Fair Work Commission. However, the conduct of the applicant and the nominee does not indicate that compliance with legal practice certificates is observed.

    ·An affidavit of the nominee, sworn 25 February 2020, swears that the nominee was advised by the nominator was to “temporarily” “take over the law practice in October 2018” following the delay in the review process before the Tribunal, having received an exemption from supervision. He further swore that “I was not entitled to run and establish law practice as I was obligated to work as an employee under supervision for two years. I started law practice on 16 October 2018 just to run my livelihood and earn my bread after dispense with the supervision condition….HUK legal has employees but never been paid as this law firm doesn’t have enough resources to pay some employee. These employees are just for supervision purposes as unpaid employees”. The Tribunal was not informed as to who is supervising these employees. The nominee also gave evidence that he was paid a salary by his firm. The nominee swears that he intends and wishes to start employment with the nominator. However, what is unclear is that, despite the nominee acknowledging the limitations of his right to practice, he nonetheless ignored them to set up a firm. In the absence of any reliable evidence or explanation as to why the nominee departed from the applicant’s employment when considered with the conduct of the nominee the Tribunal is not satisfied that the applicant has demonstrated a need for a paid employee to work in the position under the direct control of the nominator.

    ·Letter dated 15 October 2018 from the Victorian Legal Services Board addressed to HUK Legal Services Pty Ltd confirming the registration of an incorporated legal practice. The address stated for the firm is 47 Lloyd Street Heidelberg Heights 3081. The Tribunal notes that this is the registered office of the nominee’s company.

    ·Australian Practicing Certificate of the nominee for 2017-2018 stating that he is authorised to engage in legal practice as an employee of a law practice and is not authorised to receive trust money. It states that “The holder of this certificate must engage in supervised legal practice only, until they have completed the prescribed period of supervised legal practice under section 49 of the Legal Profession Uniform Law (Vic).

    ·Australian Practicing Certificate of the nominee for 2018-2019 stating that he is authorised to engage in legal practice as an employee of a law practice and is not authorised to receive trust money. It states that “The holder of this certificate must engage in supervised legal practice only, until they have completed the prescribed period of supervised legal practice under section 49 of the Legal Profession Uniform Law (Vic)”. The Tribunal notes that the nominees’ firm operated during this period. However, the Tribunal has not received any satisfactory or persuasive evidence of who supervised the nominee during this time or when the prescribed period of supervised legal practice occurred and concluded. The nominee has stated that when employed by the applicant he received supervision by phone and email from Ms Royall. Such a method of supervision does not add weight to the claim that the nominee is under the direct control of the applicant. However, having left the applicant’s employ and establishing himself as a principal in a law firm, whilst holding a practicing certificate that required supervision does not add weight to the applicant’s claim that there is a need to employ the nominee, but rather suggests that a migration outcome is the true motivation in this arrangement.

    ·Australian Practicing Certificate of the nominee for 2019-20 stating that he is authorised to engage in legal practice as an employee of a law practice and is not authorised to receive trust money. The supervision limitations no longer apply in this certificate. That being the case and in the absence of any persuasive evidence to the contrary, it is improbable, logically, that the nominee would abandon his firm and employees to return to the employ of the applicant.

1. The Tribunal must assess the application in light of the evidence before it so that it is satisfied that the applicant has identified a need to employ a paid employee to work in the position of solicitor. The occupation according to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) is classified as ANZSCO 27131. The nominated base salary stated in the application is $55,500 per annum plus superannuation. On the evidence before it the delegate was not persuaded that the nomination identified a need for a paid employee to work in the position under the direct control of the nominator and therefore the nomination did not meet the requirements of r.5.19(4)(a)(ii) and was consequently refused.

2. The Tribunal notes that the employment contract identifies the employer as Williamstown Commercial Lawyer Pty Ltd (the company). The trust deed names the company as trustee for the WCL Trust, the primary beneficiary of which is Ms Meda Royall who is also the sole director of the company. The employment contract does not state that the company is acting in its capacity as trustee for the WCL Trust in the employment of the nominee. This application has been brought by the company in its role as trustree. Whilst nothing may turn on this in practical terms, there is an inconsistency in the documentation in so far as the identity of the nominator and applicant is concerned.

3. The evidence before the Tribunal is that the nominee has not worked for the applicant for some time. Further, the evidence presented to the Tribunal confirms that the nominee has established an independent law firm with a number of employees. The nominee claims to be the principal of that firm. The nominator has continued to practice with the employment of Ms Schneider and outsourced, some time ago, a few immigration matters to a different practitioner. There is an absence of evidence of any referrals to the nominee and evidence of a need for a further practitioner. The Tribunal cannot be satisfied on the evidence before it that the applicant has established that there is a need for a paid employee to work in the position under its direct control.

4. The Tribunal refers to the affidavit of the nominee sworn 25 February 2020, in which the nominee alleges that the 3 employees of his firm are not paid but are there for supervision purposes. The identity of the supervisor is not stated, however, the nominee gave evidence that he is supervising them. The evidence was that there has been very little contact between the applicant and the nominee and any alleged referred work was historic there being no evidence of any current working relationship between the nominator and the nominee. Consequently, the evidence before the Tribunal does not support a finding that there is a need for the nominator to pay an employee to work in a position under the direct control of the nominator.

5. Further, the Tribunal finds it implausible that the nominee would return as an employee of the applicant on a salary of $55,500 under such circumstances where he is the principal of a separate firm from which he has made his “livelihood and earned “ his “bread” and is responsible for 3 employees who require supervision. The Tribunal does not accept, as reasonable, the explanation provided by the applicant as to why the nominee left the employment of the nominator, that reason being the Department’s decision not to grant the nomination. The evidence of the applicant was that there is a need to employ the nominee. However, the evidence before the Tribunal does not support this assertion. The nominee’s departure from the nominator lends weight to the position that there was no need at that time for the nominator to employ an employee in the nominated role or at any other time. Further, the evidence is that for a period of time the nominee was unpaid. No satisfactory explanation has been provided as to why this occurred. The circumstances of the creation of the nominee’s law firm and the lack of evidence of the need to re-employ the nominee submitted by the applicant does not support the application and suggests that the process has been utilised to secure a migration outcome.

6. Ms Royall’s evidence was that she has had infrequent contact with the nominee other than referring migration work to him. She further claimed that she wished to expand her firm to take on immigration work and needed the nominee for that purpose. In the absence of corroborative evidence in support of this claim the Tribunal is not persuaded that the applicant has established such a need. Further, Ms Royall’s evidence was that the referral arrangement with the nominee had only occurred twice, there being no corroborative evidence of this claim, and there had not been migration work performed at her firm for some time. Such evidence does not support the claim that there is a need for s a paid employee to work in the position under the direct control of the nominator.

7. In light of the evidence, the Tribunal is not satisfied that the applicant has identified a need for the nominator to employ a paid employee to work in the full-time position of Solicitor under the direct control of the nominator.

8. Accordingly, the requirement in r.5.19(4)(a) is not met.

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

   DECISION

10. The Tribunal affirms the decision under review to refuse the nomination.

    Danielle Galvin
    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).