The Wayup Pty Ltd (Migration)

[2022] AATA 2949

The Wayup Pty Ltd (Migration) [2022] AATA 2949 (18 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Wayup Pty Ltd

REPRESENTATIVE:  Dr Xiaokang Zhou (MARN: 0531451)

CASE NUMBER:  1905151

HOME AFFAIRS REFERENCE(S):          BCC2018/3268188

MEMBER:Warren Stooke AM

DATE:18 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 May 2022 at 3.08pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Cook – genuine need – provision of relevant documentation – longevity of employment since 1 September 2014 – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), 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 Home Affairs on 14 February 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 29 August 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream for the nominated occupation of Cook – ANZSCO Code: 351411.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the sponsor had provided no documentation to support the continued genuine need for the nominated position at the business. In the absence of relevant documentation, the delegate was not satisfied that there is a genuine need for the nominator to employ the identified person to work in the nominated position under their direct control.

5. The applicant appeared before the Tribunal on 9 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Muhammad Israr Tahir (the nominee) 

6. The applicant stated that he understood the main grounds for the delegate’s decision was the agent did not provide all the documentation.

7. The applicant stated that he provided a copy of the delegate’s decision to the Tribunal with the application for review.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. 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

10. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in TRT reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

11. The Wayup Pty Ltd was registered with ASIC on 11 August 2011 and assigned ABN 75 152 621 906 with Lifeng Vu, General Manager of The Wayup Pty Ltd.

12. The applicant provided evidence that the business trades as Degani Bakery Café and that the business is a restaurant that has operated for 13 years and provides rapid lunch and dinner.

13. The applicant stated that the business operates Monday to Sunday from 7.00am to 10.00pm and provides modern Australian, Asian and Italian pizza.

14. The applicant stated that the business is located at Westfields in the Plenty Valley, where the applicant, Mr Vu, is the General Manager of the business and has a computer science engineering background formerly with Toyota and that his wife is a director of the business.

15. The applicant stated that he has four other restaurants and at Degani he assits the staff in the different departments.

16. The applicant provided an organisation chart for the kitchen that identified that the business has a Director, General Manager, 2 Chefs, 3 Cooks and 2 Kitchen Hands reporting to the Director.

17. The applicant stated that the business has 28 employees, where 12 are full-time of which 3 are visa holders.

18. The applicant stated that the Hospitality Industry Award applies to the employees in the business.

19. The applicant stated that he employs a part-time person to perform the paperwork for the business, that includes providing employees with a Fair Work Information Statement

20. The applicant provided evidence that the nomination for sponsorship was approved on 30 September 2015 with Mr Tahir, who was granted a 457 Temporary visa on 24 September 2014. A new nomination was approved on 11 October 2021, which is valid until 11 October 2026.

21. The applicant provided evidence of the financial status of the company, as follows:

2018	2019	2020
Total Income	$1,862,436	$1,744,846	$1,765,105
Total Expenses	$1,866,458	$1,745,569	$1,679,938
Profit/Loss	($4,022)	($723)	$85,167
Total Assets	$591,724	$558,511	$460,820
Total Liabilities	$575,738	$533,086	$455,362
Wages & Salary	$623,164	$569,142	$539,992
Superannuation	$57,307	$52,203	$51,466

1. The applicant provided evidence of Mr Tahir’s ATO Income Tax Returns that identified the wages paid during employment, as follows:

2017	2018	2019*	2020*
Income	$51,925	$52,531	$33,185	$40,350

* Covid period

1. The applicant provided the following information relating to the employment of the nominee in the position of Cook:

   “Mr Muhammad Israr Tahir has been working full time in THEWAYUP PTY LTD t/a DEGANI Bakery Cafe Restaurant as a Cook since 01/Oct/2015 until present. As a Cook, Mr Muhammad Israr Tahir is able to perform his daily job duties very well with sound cooking skills, great team work and smooth communication with customers. The company is satisfied with his work performance and would like to sponsor his permanent visa application to secure his stable employment with THEWAYUP PTY LTD t/a DEGANI Bakery Cafe Restaurant on the long term basis.”

2. The applicant stated that the nominee is paid $55,000 as a full-time employee, at the moment.

3. The applicant provided evidence that the nominee undertakes the following duties in the position of Cook for the business:

   a.To prepare requisitions, order food and supplies and takes inventory.

   b.To ensure the correct and economical use of materials and appropriate portion control is implemented at all times.

   c.To cook food by a range of methods including baking, braising, frying, roasting, steaming and so on.

   d.To determine serving size of meals, plan menus, and to ensure uniform quality and presentation of the foods.

   e.To monitor temperatures of ovens stovetops measure, mix and cook in gradients according to recipes.

   f.To verify the delivery of supplies to the kitchen on a daily basis.

   g.To ensure the correct, safe and economical use of equipment, and to report any faults to the owner immediately.

   h.Ensure the high standards of cleanliness are maintained in the kitchen; include cleaning work area, equipment, utensils, dishes and silverwares.

   i.Assist with menu development and follow recipes.

   j.To liaise with colleague when appropriate or when requested with regard to the customer’s requirements.

4. The applicant stated that the nominee is employed for 38 hours per week and that the second contract, which is pending the grant of a visa is for $60,000.

5. The applicant stated that the business is contributing to Hostplus for superannuation and that the accountant makes these payments.

6. The applicant stated that the position requires qualifications of Certificate III and IV in Commercial Cookery to undertake the job.

7. The applicant stated that the nominee had been working for the business since 1 September 2014.

   Witness Evidence – Mr Muhammad Isar (the nominee)

8. The nominee confirmed to the Tribunal that he applied for an Employment Nomination 186 Visa (Class RN) on 21 September 2018 and that he was advised by the Department on 15 April 2019 that his visa application had been refused.

9. The nominee provided evidence that he had not read the delegate’s decision and stated that his agent told him that his nomination was rejected.

10. The nominee provided evidence that he had a contract of employment dated 1 September 2014 with a salary of $55,000 and superannuation that commenced upon the grant of a visa and would be for a term of at least 2 years and the new contract of employment that will apply from the grant of the visa with a salary of $60,000.

11. The nominee provided evidence that he completed a Certificate III in Hospitality (Commercial Cookery) and Certificate IV in Hospitality (Commercial Cookery) on 13 September 2013.

12. The nominee stated at hearing that he had completed a Diploma of Leadership and Management and Diploma of Hospitality Management in 2016.

13. The nominee stated at hearing that he was employed on a salary of $55,000 per annum and works for 38 to 40 hours per week.

14. The nominee stated that his wife and daughter are resident in Pakistan and that he has both parents and a brother living in Pakistan.

15. The applicant stated that he completed an IELTS English language test in 2014-15 and had a score of 5.5.

    Application requirements – reg 5.19(4)(a)

16. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

    ·be made in accordance with approved form 1395 (Internet);

    ·identify the position;

    ·identify a person in relation to the position;

    ·identify an occupation in relation to the position,

    ·identify the subclass and stream to which the nomination relates;

    ·be accompanied by the fee mentioned in reg 5.37; and

    ·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

17. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

18. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

19. The applicant lodged the most recent application to nominate the nominee for the position of Cook – ANZSCO Code: 351411 with the business on 29 August 2018 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).

20. The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.

21. Further, the Tribunal is satisfied that the business is profitable, based upon the evidence submitted, that ensures the viable ongoing performance of the business. In this regard, the Tribunal accepts that the registered business has employed the nominee since 1 September 2014 and has demonstrated that it is able to meet its employment obligations for the next two years, from the grant of a visa, as has been evidenced since 1 September 2014.

22. The Tribunal accepts that the business can meet its financial obligations and employ the nominee in the position of Cook – ANZSCO Code: 351411.

23. The Tribunal accepts that the business is a substantive restaurant and has a genuine need for the position of Cook - ANZSCO Code: 351411 that was first advertised on Seek.com on 9 November 2016.

24. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

    No adverse information known to Immigration – reg 5.19(4)(b)

25. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

26. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

    ·has contravened a law of the Commonwealth, a State or a Territory, or

    ·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or

    ·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or

    ·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or

    ·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).

27. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:

    ·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or

    ·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or

    ·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or

    ·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,

    ·one is or was able to exercise influence or control over the other, or

    ·a third person is or was able to exercise influence or control over the both of them.

    Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

28. The Tribunal is satisfied 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 rr.1.13A and 1.13B. 

29. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licencing, registration and memberships – reg 5.19(4)(c)

30. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

31. In this instance, the relevant State or Territory is Victoria and the relevant occupation is Cook – ANZSCO Code: 351411 based upon the date of application of 29 August 2018.

32. The Tribunal is satisfied that the business The Wayup Pty Ltd is a registered business with ASIC from 11 August 2011 with ABN 75 152 621 906.

33. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

    Satisfactory compliance with employment laws - reg 5.19(4)(d)

34. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

35. The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 1 September 2014 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant stated that the nominee was provided with a Fair Work Information Statement at the time of employment by the business’s accountant.

36. The ATO Tax Returns identify that the applicant has met superannuation contributions for all employees in the financial years since the application was made.

37. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Training contribution debts – reg 5.19(4)(da)

38. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

39. The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet training Benchmark A or training Benchmark B since the current standard business sponsorship approval of on 11 October 2021, which is valid until 11 October 2026.

1. As set out in the paragraph above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore, the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.

2. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

   Visa held by identified person at time of application - reg 5.19(5)(a)

3. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

   ·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or

   ·a Subclass 482 visa in the Medium-term stream; or

   ·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or

   ·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.

4. The Tribunal was provided with evidence that the nominee was subject to a 457 visa prior to nomination in the current application.

5. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.

   Occupation requirements – regs 5.19(5)(b), (c), (d)

6. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Cook – ANZSCO Code: 351411.

7. Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

8. Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is IMMI 18/051 Short Skill Occupations – Item 191 Cook – ANZSCO 351411.

9. Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

10. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.

    Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

11. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

12. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:

    ·a Subclass 457 visa in the Standard Business Sponsorship stream, or

    ·a Subclass 482 visa in the Medium-term stream, or

    ·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.

13. Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.

14. If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.

15. In this case, the nomination application was made on 29 August 2018. The relevant instrument made under reg 5.19(6) is IMMI 18/051 Short Skill Occupations – Item 191 Cook – ANZSCO 351411 and that the applicant was previously subject to a 457 visa. Having regard to the terms of that instrument, the Tribunal finds that it does not apply in this instance and so has considered the time periods as set out in regs 5.19(5)(e), (f) and (g).

16. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

    Status of the nominator – reg 5.19(5)(h)

17. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

18. The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 1 September 2014 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant stated that the nominee was provided with a Fair Work Information Statement at the time of employment by the business’s accountant.

19. The business’s ATO Tax Returns for 2019 and 2020 identify that the applicant is profitable and has an annual turnover in excess of one million dollars and has met superannuation contributions for all employees in the financial years since the application was made.

20. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

    Genuine need for employment – regs 5.19(5)(j) and (k)

21. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/051 Short Skill Occupations – Item 191 Cook – ANZSCO Code: 351411: reg 5.19(7).

22. The Tribunal is satisfied that the business has a genuine need to employ the nominee and that has been evidence with the longevity of employment since 1 September 2014 and the duties confirmed at hearing comply with the requirements of the occupation of Cook – ANZSCO Code: 351411.

23. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.

    Future employment – regs 5.19(5)(l), (m), (n)

24. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

25. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/051 Short Skill Occupations – Item 191 Cook – ANZSCO Code: 351411: reg 5.19(7).

26. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

27. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

28. The Tribunal is satisfied that a new nomination was approved on 11 October 2021, which is valid until 11 October 2026 and that the most recent contract of employment, which is pending the grant of a visa, has a salary of $60,000 and that the current contract of employment from 1 September 2014 has a salary of $55,000. This salary was corroborated in evidence by the nominee.

29. Further, the Tribunal is satisfied that the contract of employment will extend beyond a period of 2 years from the date of the grant of the visa and that the nominee has been employed with the business for more that 7 years continuously.

30. The Tribunal is satisfied that the business in the 2021 Australian Tax period made a profit of $85,167 after the payment of all expenses, including wages and salaries and thereby has the financial capacity to continue to employee the nominee.

31. The Tribunal is satisfied the annual market salary rate for the occupation is less that the salary to be paid to the nominee upon approval of the visa, and that the nominator’s business has the capacity to employ the nominee for at least 2 years and pay the employee at the rate provided in evidence.

32. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met

    Annual earnings – reg 5.19(5)(o)

33. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

    ·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

34. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.

35. The Tribunal is satisfied that a new nomination was approved on 11 October 2021, which is valid until 11 October 2026 and that the most recent contract of employment, which is pending the grant of a visa, has a salary of $60,000 and that the current contract of employment from 1 September 2014 has a salary of $55,000. This salary was corroborated in evidence by the nominee. As such, the Tribunal is satisfied that the proposed salary exceeds the market rate for the occupation of Cook – ANZSCO Code: 351411.

36. For these reasons the requirements of reg 2.72(15)(c); reg 2.72(15)(d); reg 2.72(15)(e); 2.72(15)(f); reg 2.72(15)(g) are met.

37. For these reasons the requirements of reg 2.72(15)(f) are met.

38. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.

    No information to indicate less favourable employment conditions – reg 5.19(5)(p)

100.   Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

101.   The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

102. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.

Information required by the Minister – reg 5.19(5)(q)

103.   Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.

104.   The Tribunal is satisfied that the nominator has provided the relevant information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.

105. Given the above findings herein, the Tribunal is satisfied that reg 5.19(5)(q) is met.

106. 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

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

Warren Stooke AM
Member

Attachment – extracts from the migration regulations 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

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

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

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

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)either:

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

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

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

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

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

(ii)apply to the identified person in accordance with an instrument made under that subregulation;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 3 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

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

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

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

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

(8)The Minister may, by legislative instrument, specify:

(a)occupations for the purposes of paragraph (5)(c); and

(b)persons who are exempt from the operation of that paragraph; and

(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(i)the nominator;

(ii)the identified person;

(iii)the occupation;

(iv)the position in which the identified person is to work;

(v)the circumstances in which the occupation is undertaken;

(vi)the circumstances in which the person is to be employed in the position.