Tiles by Morrissey Pty Ltd ATF Tiles By Morrissey Trust (Migration)

Tiles by Morrissey Pty Ltd ATF Tiles By Morrissey Trust (Migration) [2021] AATA 3209 (23 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Tiles by Morrissey Pty Ltd ATF Tiles by Morrissey Trust
CASE NUMBER:  1825120
HOME AFFAIRS REFERENCE(S):          BCC2016/4237803
MEMBER:Terrence Baxter
DATE:23 July 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 July 2021 at 10:23am
CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Office Manager – position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 years – genuine need for the nominator to employ a paid employee – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245R
Migration Regulations 1994, rr 1.13, 5.19
CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Tiles by Morrissey Pty Ltd as trustee for the Tiles by Morrissey Trust, applied for approval on 15 December 2016. The applicant nominated Pinjing Lyu (the nominee) in the position of Office 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found that the applicant had not demonstrated there is a genuine need to employ a paid employee to work in the nominated position under the applicant’s direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 29 August 2018.
Mr Christopher Morrissey, the sole director of the corporate trustee of the applicant Trust, appeared before the Tribunal by video conference on 18 May 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.
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.
The applicant was represented in relation to the review by its registered migration agent, Ms Kathryn Bateman, of Migration Team Australia. The representative attended the Tribunal hearing by video conference.
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
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
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.    A position description and employment contracts of the nominee.
b.    A list of employees employed by the applicant.
c.     Financial statements for the 2015 and 2016 financial years.
d.    Activity statements for the period from July 2015 to September 2016, and from January 2017 to March 2018.
e.    A section 245AR certification form signed by the applicant.
f.   Market salary evidence including job advertisements.
g.    An extract of the trust deed for the Tiles by Morrissey Trust.
h.    Historical ABN information for the applicant.
i.   An updated employee list for the applicant.
j.   A Form 1404 issued by the Regional Certifying Body (RCB), Regional Development Australia, Lismore, dated 23 March 2017, and assessment letter dated 28 March 2017.
k.     A profit and loss statement for the 2017 financial year.
l.   Job advertisements for the position and summary of unsuccessful applicants, including emails from a recruiter regarding the same.
The applicant produced to the Tribunal the following documents, including:
a.    Copies of documents already provided to the Department.
b.    Submissions from the applicant dated 7 March 2017 and 31 March 2021.
c.     Website and Facebook information for the applicant.
d.    Submissions from the representative to the RCB dated 8 March 2017.
e.    Evidence of the tasks performed by the nominee in the position.
f.   An ASIC company statement extract and invoices issued by ASIC.
g.    Activity statements for the period from July 2018 to December 2020.
h.    Financial statements for the 2019 and 2020 financial years.
i.   Trust tax returns for the 2019 and 2020 financial years.
j.   An updated employment contract of the nominee dated 22 March 2021 and position description.
k.     Updated staff list and photos of the business premises.
l.   Evidence of the applicant’s tenancy of its business premises.
m.   An email from the applicant to the representative regarding unsuitable job applicants dated 23 April 2019.
n.    Updated job advertisements for the position.
o.    Updated market salary evidence.
p.    Submissions from the representative dated 1 April 2021.
q.    An undated submission regarding the duties of the director.
r.     Business bank statements of the applicant.
s.     A payroll activity summary prepared by the applicant for the period from 5 May 2020 to 5 May 2021.
t.   Purchase register details of contractors prepared by the applicant for the period from 5 May 2020 to 5 May 2021.
u.    A profit and loss statement for the period from 1 July 2020 to 6 May 2021.
v.     An employee superannuation advice prepared by the applicant for the period from 5 May 2020 to 5 May 2021.
Evidence presented at the hearing regarding the applicant’s operations
Mr Morrissey gave evidence regarding the business operations of the applicant. He stated that he had left school at the age of 14 to undertake an apprenticeship as a ceramic tiler. He said that he had then commenced operating his own business in 1977 and that the business had provided commercial tiling services for approximately 35 years, at times employing up to 50 tilers. He said that, approximately eight years ago, he had transitioned the business from the installation of tiles to the importing and wholesale and retail sale of tiles.
Mr Morrissey said that the size of the business had approximately doubled over the last couple of years. He described his strengths as being experienced in the tiling industry and his ability to consult with customers regarding the best product for a particular job. He described his weaknesses as bookwork, paperwork and administration. He spoke of the attributes of the nominee and of her contribution to the business, particularly during the COVID‑19 pandemic.
The nominee gave evidence of her employment and the tasks performed by her in the position.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.    The complete trust deed of the Tiles by Morrissey Trust.
b.    An income statement of the applicant for the period from 1 July 2020 to 1 June 2021.
c.     PAYG payment summaries of the nominee for the 2018 to 2020 financial years.
d.    An ATO payment plan for the superannuation guarantee owed by the applicant.
e.    A submission from the applicant’s accountant dated 31 May 2021.
f.   A submission from the applicant dated 1 June 2021.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full‑time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed January 2021).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Office Manager. The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Office Manager under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee as a paid employee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
Having found that reg 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant produced to the Tribunal a copy of the trust deed for the applicant Trust, recent taxation returns, financial statements, activity statements and ASIC evidence in respect of the applicant. The applicant also produced evidence that the applicant’s ABN status is active and that the applicant is registered for GST. Mr Morrissey gave evidence of the applicant’s business activities.
The applicant’s financial statements show that the applicant recorded sales of $965,787, $868,617 and $841,788 in the 2018, 2019 and 2020 financial years respectively.
Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely the operation of a wholesale and retail business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Mr Morrissey gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Contract of Employment dated 22 March 2021 produced to the Department provides that the nominee is to be employed on a full-time basis and that the position description is Office Manager. The document further provides that the agreement is to commence on the approval of the nominee’s Subclass 187 RSMS visa and that the employment is for two years with the possibility of renewal. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264).
The financial statements provided by the applicant to the Tribunal disclose the following trading figures:

Financial year

2018

2019

2020

1/7/20 to 6/5/21

Sales

$965,787

$868,617

$841,788

$813,115

Cost of sales

$732,637

$611,924

$591,963

$530,114

Gross profit

$233,150

$256,693

$249,825

$283,001

Other income

$0

$42,490

$50,137

$83,766

Total income

$233,150

$299,183

$299,962

$366,767

Expenses

$219,111

$287,458

$295,815

$314,916

Operating profit

$14,039

$11,725

$4,147

$51,851

The financial statements reveal that the applicant paid director’s fees of $57,110 and $28,356 in the 2020 financial year and the part-year to 6 May 2021 respectively. The applicant produced bank statements indicating that the applicant had available funds of $121,690 on 11 May 2021. The 2020 balance sheet reveals that the applicant Trust had net assets of $35,581 as at 30 June 2020.
The 2020 balance sheet also recorded a liability of $30,674 described as “Superannuation Contributions Surcharge”. At the hearing, Mr Morrissey stated that he was unaware of the nature of this liability. The Tribunal suggested to him that this liability may represent superannuation contributions unpaid by the applicant as at 30 June 2020. The Tribunal suggested that this liability, having increased from $24,043 on 30 June 2019, might suggest that the applicant was having difficulty in paying the superannuation contributions payable by it. Mr Morrissey said that it was possible that payment of superannuation contributions had been missed by the applicant’s accountant and that the applicant had to catch up with these payments. After the hearing, the applicant provided a submission from its accountant that the superannuation liability recorded in the 2020 balance sheet was artificially high because the amount was calculated by including payments to trade contractors for whom contributions were not payable. The applicant provided evidence from the Australian Taxation Office that the amount payable for the superannuation guarantee as at 31 May 2021 was $22,344.39 and that the applicant had entered into a payment plan for payment of the liability by monthly instalments.
The applicant’s profits in the financial years up to 2020 were modest. The Tribunal notes that the nominee was employed by the applicant throughout the 2018 to 2020 financial years, having been paid salaries of $32,560, $42,240 and $45,760 respectively in those years. The annual salary payable to the nominee under the 2021 employment contract is $52,700. Although this salary exceeds the salaries which have been paid to the nominee during recent financial years, the Tribunal takes into account the increased profitability of the business for the part-year to 6 May 2021 according to the profit and loss statement provided to the Tribunal, supported by the bank statements. Having regard to all the evidence, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Office Manager in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(3)(d)(i) is met.
Given the above findings that the requirements of both reg 5.19(4)(d)(i) and (ii) are met, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant’s employee list establishes that the applicant has no Australian citizen or permanent resident working in the position of Office Manager at the present time. The current employment contract provides that the applicant will pay to the nominee a salary of $52,700 per annum, plus superannuation required by law.

The applicant produced evidence from PayScale that the average annual salary paid to an Office Manager in Tweed Heads currently ranges between $46,000 and $63,000. The applicant also produced job advertisements for the position of Office Administrator with a salary of $25 to $30 per hour, equivalent to $49,400 to $59,260 annually for a 38-hour week.
The Tribunal also has had regard to the certificate of the RCB, being the Form 1404 issued by Regional Development Australia, Lismore, dated 23 March 2017, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B of the Regulations.
There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)
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 a regional certifying body has advised the Minister about certain matters relating to the position.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
The nomination application provides that the nominee is to be employed at 1/27 Rivendell Drive, Tweed Heads South, New South Wales 2486, a location in regional Australia according to the relevant instrument. The location of the business is established by the evidence before the Tribunal. Based on the evidence presented, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee as a paid employee to work in the position under the applicant’s direct control
The delegate found this requirement had not been met. Relevantly, the delegate found that the applicant had not provided a submission in writing to demonstrate that there is a genuine need for the nominated position. The applicant provided to the Tribunal several submissions from Mr Morrissey regarding the genuine need to employ the nominee, together with a submission from the representative and a schedule of duties performed by Mr Morrissey in the business. The applicant also provided substantial evidence of tasks performed by the nominee in the position.
At the hearing, Mr Morrissey acknowledged what he described as his shortcomings relating to business administration. He described his heavy reliance on the nominee, particularly during the COVID‑19 pandemic when the applicant had closed the doors of the showroom to customers. He said that the nominee had continued to work in the business premises, arranging for appointments with prospective customers, leaving samples of tiles for collection by customers and arranging for the Trust to continue to trade through electronic sales. Mr Morrissey stated that many of the suppliers of tiles to the business were located in China and that the nominee could communicate with them in the Mandarin language, in which he was not personally fluent. He said that the nominee had saved not only her own position but also the business.
Mr Morrissey was asked why, with his knowledge of the tiling industry, he could not handle the position of Office Manager himself. He said that, apart from his lack of skills in management, he had experienced health problems in recent years and that he required surgery on his back for a condition which caused severe nerve pain in his legs. He also said that he may require cancer surgery. He stated that he had received medical advice that it would be desirable if he undertook the back surgery this year. He stated that, if this application is unsuccessful and he is unable to find another Office Manager, he would have to delay the surgery to fill the management position himself and try to keep the business going.
The nominee gave evidence that she had been employed by the applicant for approximately five years, firstly performing general duties and then as an Office Manager for three or four years. The applicant’s business is significant in size, with sales for the 2021 financial year estimated to be almost $940,000, based on the part-year profit and loss statement. The Tribunal is satisfied that Mr Morrissey relies on the nominee to fill the position of Office Manager and that the applicant has a genuine need to employee her in that position.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 41 above. The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Office Manager at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The applicant provided to the Department evidence of job advertisements by the applicant for the position of Office Manager in 2017. The applicant provided to the Tribunal evidence of further job advertisements by the applicant for that position in early 2019 together with a report by Mr Morrissey on the outcome of that advertising. He also gave evidence at the hearing regarding the recruitment efforts. He stated that it appeared that only two applicants may be suitable to fill the position. Both of those applicants were invited for interviews. One applicant declined to attend the interview and the other was not suitably qualified for the position. Neither applicant resided locally.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 41 above. Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulation 5.19(4)(h)(ii)(D) and (DA) – the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant was Office Manager which has the six‑digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 51211 and which is specified in the relevant instrument being IMMI 15/083. The tasks specified in ANZSCO for that occupation include:
o    contributing to the planning and review of office services, and setting priorities and office service standards;
o    allocating human resources, space and equipment;
o    assigning work to and monitoring work performance of staff;
o    managing records and accounts of the office;
o    liaising with Professionals to coordinate office business and to facilitate resolution of problems;
o    ensuring office equipment and supplies are maintained;
o    ensuring compliance with occupational health and safety regulations;
o    ensuring work complies with relevant government legislation, policies and procedures;
o    coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision.
The duties and responsibilities of Office Manager set out in the position description are consistent with the tasks specified in ANZSCO. The documents provided to the Tribunal in relation to this requirement included emails to and from the nominee as Office Manager, a Training Manual, a COVID Policy Manual, a COVID Safety Plan and a Contact Tracing Register, all prepared by the nominee. Mr Morrissey gave evidence at the hearing regarding the nominee’s tasks. In relation to occupational health and safety, he said that the nominee was responsible to ensure that the applicant complied with its requirements, particularly in relation to fire safety and COVID compliance. He also said that the nominee was responsible for maintaining the required level of supplies, including for the forklift. He described the office equipment for which the nominee was responsible. He also gave evidence of a system which had been implemented by the nominee for the tracking of orders, including colour coding to indicate when the orders had been placed, when the product was delivered to the applicant’s premises and when it was subsequently delivered to customers.
The nominee gave evidence of the tasks performed by her in the position, she not having been present in the hearing when the evidence of Mr Morrissey was given. She said that it was her job to see that the business ran smoothly. She stated that she streamlined office systems and ensured that service standards were met. The nominee said that staff members met each Monday and that she prepared written reports of the staff meeting for presentation to Mr Morrissey. She said that she met with him daily to discuss office management issues.
Based on all the evidence, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Office Manager specified by the Minister in the relevant instrument, being IMMI 15/083. The applicant produced evidence of the nominee’s academic qualifications to establish that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and (DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 51 above, the Tribunal is satisfied that the business operated by the applicant is located at 1/27 Rivendell Drive, Tweed Heads South, New South Wales 2486, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same state as the location of the position has advised the Minister about the matters mentioned in reg 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 41 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2021] AATA 3209

23 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Financial year	2018	2019	2020	1/7/20 to 6/5/21
Sales	$965,787	$868,617	$841,788	$813,115
Cost of sales	$732,637	$611,924	$591,963	$530,114
Gross profit	$233,150	$256,693	$249,825	$283,001
Other income	$0	$42,490	$50,137	$83,766
Total income	$233,150	$299,183	$299,962	$366,767
Expenses	$219,111	$287,458	$295,815	$314,916
Operating profit	$14,039	$11,725	$4,147	$51,851