TRAFFIC WERX NT PTY LTD (Migration)

[2022] AATA 1987

TRAFFIC WERX NT PTY LTD (Migration) [2022] AATA 1987 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TRAFFIC WERX NT PTY LTD

REPRESENTATIVE:  Mr Scott Andrew Walker (MARN: 1076594)

CASE NUMBER:  1936129

HOME AFFAIRS REFERENCE(S):          BCC2019/5690413

MEMBER:Alan McMurran

DATE:22 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 22 April 2022 at 9:47am

CATCHWORDS
MIGRATION–nomination – Direct Entry stream – contract administrator – nominee is genuinely carrying out the full duties and responsibilities of a contract administrator –position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 years –applicant lawfully operating a business in Australia–decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 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 8 December 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 11 November 2019. 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.

3. 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).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream, and for a minimum term of 2 years up to 4 years (Short term stream). The nominated position is for a Contract Administrator (ANZSCO 511111). The nominee, Kathleen Rayner, is a British citizen who holds a British passport (“ the nominee”) and has applied for a related Subclass 187 visa, also under review.[1]

   [1] T case 2001185

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(e) and r.5.19(4)(f) of the Regulations because there was insufficient evidence to demonstrate that the applicant has the financial capacity to meet its financial obligations of the sponsorship program.

6. The applicant appeared before the Tribunal to give evidence and present arguments on 14 April 2022 in a combined hearing with a review of the refusal of the nominee’s visa application.  

7. The Tribunal received oral evidence from the owner and sole director of the applicant, Mr Boyer (“the director”), and from the nominee. The hearing was conducted virtually, using MS teams for audio and video recording. This was deemed to be the most efficient means of conducting the hearing in order to meet the Tribunal’s statutory objective, without creating further delays and noting the process was accepted by the parties and their representative. Both parties indicated they were ready and willing to proceed.

8. The applicant and the nominee were represented in relation to the review by the same representative migration agent.

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 reg 5.19(9), which are extracted in the attachment to this decision.

11. For the nomination to be approved, all the requirements must be met.

12. The Tribunal has available for consideration the Department’s files for the applicant and the nominee together with the related Tribunal files. The Tribunal has also had regard to information available from the Internet, from the ASIC, and Department policy.

    Background

13. The applicant is a registered corporation carrying on business in the Northern Territory. The business commenced in 2010 with two directors, and designs traffic management plans, which it manages and implements for different projects in the Territory.

14. The applicant competes for public and private infrastructure projects involving traffic management, and employs (currently) 55 on-road traffic employees, approximately half of whom are temporary visa holders on working holidays. It has an administration team with now only one director (Mr Boyer), a fleet controller, general manager, work safety officer, internal accountant, bookkeeper, contract administrator (the nominee), a mechanic and a receptionist.

15. The director is the principal sales person for the business and has delegated the contract planning and management role to the nominee, since her recruitment in 2019, as he was unable to manage all aspects of the business on his own, after the other director left the business.

    Reg 5.19(4)(a) - Application requirements

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 (“the charge”) and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb).

18. 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.

19. 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.

20. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.

21. On the available evidence, the Tribunal is satisfied and finds that the application was made on 11 November 2019 using the current approved (internet) form, identifies the position in the applicant’s business and by reference to its organisation chart, and the related person, the nominee. The application identifies the occupation as Contract Administrator, being on the current list of approved occupations[2], and for a Subclass 187 visa in the Direct Entry Stream.

    [2] LIN 19/047

22. The applicant has provided evidence including lodged ATO information of the annual turnover (less than $10,000,000) which determines the charge paid and has paid the required fee and the associated charge ($3,000) on lodgement.

23. The nominator has provided a written certification that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act), and which relates to obtaining a benefit for a sponsorship-related event.

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.

    Reg 5.19(4)(b) - No adverse information known to Immigration

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. Information available from the Department shows that the applicant had been previously monitored in 2016, where breaches had been identified and a sanction issued for a 2 year  bar. The monitoring followed a site visit on 11 February 2016, and concerns were raised over the engagement of Subclass 457 temporary visa holders, working for the nominator as sponsor at the time.

29. According to the Department information, the monitoring was finalised at that time and an infringement notice issued. The matter was discussed with the director at length in the hearing and is the subject of post hearing submissions. A question arose whether the applicant had been fined and whether any fine was paid.

30. The applicant submitted that its further sponsorship had been approved on 17 December 2019 for 5 years, expiring 17 December 2024. The applicant successfully nominated the nominee for a Subclass 482 visa (Short Term Stream) on 19 December 2019, for an employment period up to 1 year from approval of the visa. The applicant submits that both the sponsorship and the nomination would not have been approved if the Department was concerned by adverse information which arose some years ago.

31. In his detailed submission made by Statutory Declaration 19 April 2022, the director states:

    “In 2019, my business was on a road to recovery, being the sole director, I make changes for the best to turn my business around…… I solemnly declare that Trafficwerx are following correct procedures with sponsoring, and we have implemented compliance programs including internal audits, policies, and procedures to manage sponsor compliance in the workplace. The Department of home affairs have provided us another chance to redeem ourselves from our adverse past and kindly provided us the opportunity of business sponsorship for 5 years. We have 3 more staff we are going to sponsor this year. We plead that you also provide us another chance and allow us to sponsor Kathleen Rayner and recognise that Trafficwerx had poor management in the past and this has now been transformed”.

32. The Department has not provided any information at the time of decision which might contradict the director’s assertions. The Tribunal contacted the Department for information. No immediate response was forthcoming to a general question whether the Department still had concerns about the applicant. The initial response was to the effect that as there was a current sponsorship and a recent nomination approved, it would not seem currently relevant.

33. The Department indicated it may take some considerable time if further information is required.

34. This application for merits review and the related visa application for review were granted priority by the Tribunal, as there is a personal emergency which requires the nominee to be able to travel. The Tribunal finds on the available information that there is no current concern raised by the Department which would warrant interfering with the current priority granted and deferring or adjourning the hearing process and outcome of the merits review for that purpose.

35. Having considered the above, the Tribunal is satisfied that in the circumstances it is reasonable to disregard any adverse information known to immigration about the nominator or a person associated with the nominator, in accordance with subclause 5.19(4)(b)(ii).

36. 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)

37. 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.

38. In this instance, the relevant State or Territory is the Northern Territory, the relevant occupation is Contract Administrator and the date of application is 11 November 2019. The director was asked about licencing.

39. The director told the Tribunal that the person designing the traffic management plans (the nominee) is required to be accredited. He said the nominee currently holds Work Zone (“WZ”) 1, WZ 2 and WZ 3 certifications. Traffic plans prepared by the nominee are submitted and scrutinised for approval by the local Territory authority, the NT Department of Infrastructure and Planning, and the Darwin City Council. No other licencing or registration is required.

40. The Tribunal is satisfied on the information that the nominee holds appropriate accreditations which are due for renewal in December 2022, and which include a 5 day refresher course and practical assignment, to be paid for by the applicant.

41. 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)

42. 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.

43. There is no information or evidence before the Tribunal that the applicant does not have a satisfactory record of workplace compliance in the Territory where it operates. The director said he was not aware of any issues raised regarding employment and involving the applicant or any other employee.

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

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

45. 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.

46. The Tribunal finds that there is no evidence of any debt for a training contribution charge due and payable. The applicant provided evidence that it paid the mandatory charge ($3,000) on 11 November 2019 for this application, and which is its only current nomination.

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

    Actively and lawfully operating business – reg 5.19(9)(a)

48. Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.

49. The applicant is a currently registered and active corporation carrying on business in the Northern Territory with a currently registered business name. There is no information before the Tribunal that the applicant is not lawfully operating.

50. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.

    Labour hire businesses – reg 5.19(9)(b)

51. Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.

52. There is no evidence before the Tribunal that the applicant nominator’s business engages in labour hire to unrelated businesses.

53. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.

    Genuine need for employment – regs 5.19(9)(c) and (d)

54. Regulation 5.19(9)(c) 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(9)(d) requires this need to be genuine.

55. The Tribunal discussed the nominated position at length with the director at hearing. The Tribunal asked why the position was necessary and what role the nominee actually performs.

56. The director explained that around the time when the other director left in about 2016, the business was struggling. The director was principally a sales person and administration and technical work necessary for contract management was not his expertise. In 2017 and for a continuing period, the applicant’s external accountant reviewed the business operation. The accountant advised that the applicant restructure and employ someone specialised to manage the contract side of things. The accountant impressed on the applicant that if restructure did not occur, then the business might fail. This was also evident from the financials for 2018/19, where the business losses were accumulating.

57. The director notes in his Statutory Declaration that the nominee has extensive experience. He recruited her in 2019 and since has noted “profits have significantly increased, and I am financially secure”. This is apparently a recent development arising in the past two years and since the nominee’s engagement, which the director describes “has paid off”, and so much so that he now cannot afford to lose or replace the nominee. In August 2021, in acknowledgement, the director increased the nominee’s salary from $63,232 in October 2019, to $114,000. He said also that she may receive a discretionary bonus on projects she now manages and which have significantly helped to grow the business since 2019.

1. The Tribunal asked questions of both the director and the nominee about her role. The nominee noted that since commencement, she has concentrated only on contract administration, leaving the director free to negotiate new projects and sales. The applicant has produced testimonials from clients as to the applicant’s work and a large amount of material as to the role, demonstrating its importance based on current busines growth and projections. One new large project client has proved to be a substantial addition, adding more than $1,000,000 to the turnover figures, and on the balance sheet, growing its revenue. This work is attributed to having a dedicated contract administrator whom the client respects and engages successfully with for its projects. Evidence was produced of the client’s current and earlier invoicing by the applicant. The director says that the applicant is now also receiving work from Darwin City Council.

2. Taking into account the director’s evidence, which the Tribunal found reliable and credible, the Tribunal accepts that the position is genuinely needed for the business to survive and flourish and to enable the director to delegate work he was unable to manage himself. He said prior to engaging the nominee, at the accountant’s suggestion, there was no specialist contract administrator in the business, which meant large projects could not be adequately managed, and was affecting the cash flow for the business. The director sought advice and has responded to his accountant’s recommendations by recruiting the nominee.

3. The Tribunal has listened carefully to the evidence and finds it is satisfied that there is a genuine need to engage an employee in the role of contract administrator.

4. Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.

   Future employment – regs 5.19(9)(e), (f) and (g)

5. Regulations 5.19(9) (e), (f) and (g) contain requirements relating to the future employment of the identified person.

6. Firstly, reg 5.19(9) (e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.

7. Secondly, reg 5.19(9) (f) 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.

8. Finally, reg 5.19(9) (g) 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.

9. The applicant has produced an employment agreement on the initial engagement of the nominee on 23 October 2019. The current agreement specifies the minimum period of two years, applicable from the approval of a visa.

10. The applicant has also provided updated financial information to show its capacity to pay the salary for the period. That includes for the trading period ending 30 June 2021. This was an issue which troubled the Department, as the financials for FYE June 2020 showed a continuing and substantial financial loss of $446,294.

11. The FYE June 2021 showed a reduction in the loss down to $282,662. Net operating profit had improved from a loss of $44,593 in 2020 to a profit of $163,632 in 2021. 

12. Contract revenue had decreased in 2019 substantially from the preceding year. But in 2020, following the company restructure, which included the nominee’s employment, revenue increased from $2,202,399 in FY 2020 to $3,155,860 in FY 2021.

13. The company’s accountants, Astute Accountants Darwin, provided a letter dated 19 February 2022 for the Tribunal, noting that “the business’s financial performance has significantly improved” and that the current financials include payment of the nominee’s current increased salary. The accountants opined that  the applicant “can adequately support the full time employment” of the nominee, who’s role is now “integral to the company’s operations”.

14. The Tribunal finds that the applicant has adequately addressed concerns over its capacity to employ the nominee on a full-time basis in the nominated position for at least the next two years, and that 5.19(9) (e) is met.

15. The director has given evidence as to the successful engagement of the nominee to date, which he regards as imperative into the future, for the business to continue to grow, and will extend the employment beyond 2 years, if possible. The Tribunal finds that the current terms and conditions do not limit extending the contract.

16. The annual market salary rate (”AMSR”) calculated by the applicant was examined by the Tribunal. The AMSR as calculated in accordance with the instrument, does not apply in circumstances where annual earnings exceed AUD $250,000. As the annual earnings do not exceed that amount, the applicant must demonstrate how it calculated the AMSR for the nominated occupation.

17. The Tribunal explained  the requirements under the relevant instrument IMMI 18/033. The intent is that nominees must be provided with remuneration that is at least equivalent to that which is, or would be, provided to an Australian worker performing the same work at the same location. The calculation commences by determining the details of the employment and salary on offer, and whether the annual earnings are less than a specified sum of $250,000 per annum, as in this instance.

18. According to the relevant instrument, the next step is to determine the rate for the specified occupation as required by reg. 2.72(17), where there is a fair work instrument, state industrial instrument or transitional instrument applicable to an Australian worker who is employed in the same workplace at the same location and performing equivalent work.

19. In this instance the Tribunal finds that there is no employee performing equivalent work in the business, as done by the nominee. The applicant has submitted that there is no applicable Award provision for an employee at the nominee’s level, which he regards as at management level now, on the increased salary package.

20. The applicant has determined the salary rate based on information as to industry standards and as paid to like employees performing the same or equivalent work. The salary range according to Payscale and JobOutlook information provided , may vary from as little as $55,000 upwards to $120,000 per annum, plus superannuation. The applicant also relies upon current advertisements for similar positions.

21. The Tribunal notes there is no instrument which specifies the market rate for the occupation.  The Tribunal finds that the rate exceeds the current Temporary Skilled Migration Income Threshold (“TSMIT”) OF $53,900.

22. The Tribunal also finds that there is no information known to Immigration that indicates that the AMSR for the occupation is inconsistent with Australian labour market conditions relevant to the occupation.

23. Given the above findings, the Tribunal is satisfied that regs 5.19(9) (e), (f) and (g) are met.

    Annual earnings – reg 5.19(9)(h)

24. Regulation 5.19(9) (h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (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.

25. 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 18/033. Regulation 2.57A provides for the meaning of ‘earnings’.

26. Where reg 2.72(15) applies, it requires that:

    ·the AMSR (the rate) for the occupation has been determined by the applicant by reference to instrument 18/033: 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 TSMIT specified in the instrument 18/033, 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).

27. The Tribunal finds on the available information that the nominee’s annual earnings are currently $114,000 per annum plus superannuation. This amount is less than the annual earnings as specified in the instrument at $250,000.

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

29. The applicant has produced evidence that there is no relevant Award or instrument applicable. The applicant has determined the amount payable in accordance with what is paid to an equivalent Australian worker based on current employment and salary market information made publicly available. For these reasons the requirements of reg 2.72(15)(c) are met.

30. The applicable TSMIT is $53,900 per annum. The rate payable is not less than that amount. For these reasons the requirements of reg 2.72(15)(d) are met.

31. The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation as determined in the applicant’s current contract of employment. For these reasons the requirements of reg 2.72(15)(e) are met.

32. As the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT, the requirements of reg 2.72(15)(f) are met.

33. The Tribunal finds that there is no information that indicates the AMSR is inconsistent with current Australian labour market conditions relevant to the occupation of Contract Administrator. For these reasons the requirements of reg 2.72(15)(g) are met.

34. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.

    No information to indicate less favourable employment conditions – reg 5.19(9)(i)

35. Regulation 5.19(9) (i) 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.

36. There is no information before the Tribunal or 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.

37. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.

    Tasks correspond to specified occupation – reg 5.19(9)(j)

38. Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa.

39. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019 (here, made on 11 November 2019). In this case, the nomination relates to a Subclass 187 visa. Regulation 5.19(12) contains a number of requirements including that:

    ·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).

    ·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).

    ·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).

    ·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).

40. The Tribunal discussed the position with the witnesses and asked questions as to the work performed by the nominee for the occupation. ANZSCO describes the role as undertaking administration of contracts, organisational programs, special projects, and support services.

41. Tasks include:

    • developing, reviewing, and negotiating variations to contracts, programs, projects and services responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
    • managing paperwork associated with contracts, programs, projects and services provided
    • working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
    • advising senior management on matters requiring attention and implementing their decisions
    • overseeing work by contractors and reporting on variations to work orders
    • preparing and reviewing submissions and reports concerning the organisation's activities
    • collecting and analysing data associated with projects undertaken, and reporting on project outcomes
    • reviewing and arranging new office accommodation

42. The Tribunal finds on the available information that the nominated position is located at Darwin in regional Australia, and that the business operated by the nominator is located at that place.

100.   The Tribunal is satisfied on the available information, which includes the advertising information provided and the director’s evidence, as to the recruitment process for the nominee. The director explained he advertised online and that there were only two applicants for the position who responded, including an applicant from Victoria who is an Australian citizen. That person disclosed that the position would be only “short term” as the person intended to return to Victoria at the end of the contract. The director rejected that applicant for that reason, as he did not want to have a ‘temporary’ person fill the role with no prospect of an extension of the employment.

101.   The director said that the nominee was engaged initially at a relatively low salary which reflected the applicant’s financial circumstances and cash flows at the time, and the nominee’s unknown capability to perform the role.

102.   The Tribunal listened carefully to the director and the nominee describing her role. The Tribunal also had regard to the written submissions and evidence as to her work. The Tribunal finds that the nominee works both in her office and on sites with project clients, and to oversee and supervise contractors, and overseeing management and implementation of the traffic plans, and performs the majority of tasks described for the role in ANZSCO and as specified in LIN 19/047 . There are no additional applicability requirements specified for the occupation in the instrument.

103.   The applicant has provided evidence to the Department of certification dated 15 December 2019 by a regional certifying body specified in IMMI 18/037,  located in the same State and Territory as the position and with responsibility for the local area, and which has advised the Minister about whether:

a.the identified person would be paid at least the annual market salary rate for the occupation,

b.there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and

c.the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.

104.   The certifier from the NT Department of Trade and Business and Innovation was satisfied as to the market salary on offer, genuine need for the position given the nature of the business and number of government contracts available, and demand for the position, but expressed reservations about the “financial performance” of the company.

105.   The applicant has addressed these concerns in the two and a half years which have elapsed since lodgment and which have been discussed in this review.

1. Given the findings set out above, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.

   Conclusion

107. 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

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

Alan McMurran
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.

…

Direct Entry stream—additional requirements for approval

(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

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

(b)if the nominator’s business activities include activities related 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;

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

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

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

(f)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;

(g)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;

(h)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;

(i)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;

(j)the requirements set out in subregulation (10) or (12) are met.

Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

(10)The requirements of this subregulation are as follows:

(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

(i)made under subregulation (11); and

(ii)in force at the time the application is made;

(b)the occupation applies to the identified person in accordance with that instrument.

(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a)the nominator;

(b)the identified person;

(c)the occupation;

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

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

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

Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

(12)The requirements of this subregulation are as follows:

(a)the position is located at a place in regional Australia;

(b)the business operated by the nominator is located at that place;

(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

(i)made under subregulation (13); and

(ii)as in force at the time the application is made;

(e)the occupation applies to the identified person in accordance with that instrument;

(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

(i)whether the identified person would be paid at least the annual market salary rate for the occupation;

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

(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(g)the body must:

(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

(ii)be located in the State or Territory in which the position is located; and

(iii)have responsibility for the local area in which the position is located.

(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a)the nominator;

(b)the identified person;

(c)the occupation;

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

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

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

…

Meaning of regional Australia

(16)In this regulation:

regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.