Woodside Road Investments Pty Ltd (Migration)

Woodside Road Investments Pty Ltd (Migration) [2021] AATA 4202 (11 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Woodside Road Investments Pty Ltd
CASE NUMBER:  1924502
HOME AFFAIRS REFERENCE(S):          BCC2018/644865
MEMBER:Karen McNamara
DATE:11 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 October 2021 at 11:11am
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of Contract Administrator – genuine need for the employment – actively and lawfully operating a business in Australia – financial capacity to employ the nominee for at least two years – updated financial information – adverse information – terms and conditions of employment no less favourable – relevant qualifications and experience – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 2.57, 5.19, 5.37
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 16 August 2019 to reject the application by Woodside Road Investments Pty Ltd(the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 7 February 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 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.
Information before the Tribunal shows that the delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(b) of the Regulations, because the application failed to demonstrate a need for the nominee to be employed as a fulltime Procurement Manager at Woodside Road Investments Pty Ltd.
The applicant applied to the Tribunal on 2 September 2019 for review of the delegate’s decision.
On 28 September 2021, the applicant represented by Mr Russell Vardanega (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lalabhai Chandubhai Raval (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1928752) and Mrs Sunaina Vardanega. The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
At the conclusion of the hearing the Tribunal invited the applicant to provide a copy of the Business Evaluation Action Plan as referred to by the applicant during the hearing. This document was received by the Tribunal on 29 September 2021.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
Non-Disclosure Certificate (s.376 of the Act) – Invitation to comment
The delegate for the Minister, on 23 December 2020, issued a Certificate under s.376 of the Act (the 376 certificate) specifying documents on the Department file, which they claimed the release of, would be contrary to public interest as it it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. A copy of this certificate was provided to the applicant on 27 September 2021.
At the hearing the Tribunal discussed with the applicant that a non-disclosure certificate has been issued pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department’s case file. The Tribunal noted on 3 September 2021 the Tribunal wrote to the applicant pursuant to s.359(A) of the Act, providing the gist of the information inviting the applicant to comment.
The Tribunal considers that the s.376 certificate is valid and provided particulars of the information to enable the applicant to comment on the validity of the certificate and whether the information should be released.
The applicant accepted that the certificate was valid and did not require the information to be released.
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.
Background
The applicant is a wholesale fruit and vegetable grower which packs, processes and markets its produce. Established in 2011 the business is located at Griffith in the NSW Riverina region. Over the last ten years the business has developed a substantial grower supply and customer base, from which the applicant buys, pre-packs, peels, processes and distributes through distribution networks in Sydney, Melbourne and Adelaide.
On 7 February 2018, the applicant lodged an application for an employer nomination approval for the position of Procurement Manager under the occupation Contract Administrator (ANZSCO 511111) under the Regional Sponsored Migration Direct Entry stream. The position is located at Griffith, NSW. The nominated base rate salary and guaranteed earnings is $55,000 per annum.
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 an identified person as a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr and Mrs Vardanega. In support of the need for the position, the applicant has provided evidence in the form of written statements to the Department and Tribunal (undated) and oral evidence provided at the hearing on 28 September 2021.
The applicant told the Tribunal that the tasks and responsibilities of the nominated position have always existed within the business and were previously covered by the owners (Mr and Mrs Vardanega). As the business has developed its supplier, customer and distribution bases, the owners have concentrated their time on other aspects of the business. Following consultation with their accountant, the owners identified that it was cost effective to employ a person in the position of Procurement Manager as opposed to using contract labour.
On the basis of the information before it, the Tribunal is satisfied that that the application for approval has identified a need for the nominator to employ a paid employee to work in the position. Accordingly, the requirements in r.5.19(4)(a)(ii) are met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are 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 Tribunal accepts on the evidence before it that the applicant operates a wholesale fruit and vegetable produce business, located at Griffith NSW. Based on the material provided to the Tribunal, (including financial statements, BAS returns, ASIC details, supplier and customer contracts and bank account statements) the Tribunal is satisfied the applicant is actively and lawfully operating a primary produce business in Australia and directly operates that 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.
At the hearing the Tribunal noted evidence provided by the applicant including the submission titled ‘Genuine Need for the Position: Procurement Manager’ which stated that the business includes inter alia ‘contract labor [sic] business’.
The applicant told the Tribunal that this was not the case and that the reference to contract labour referred to the previous seasonal worker arrangements which were no longer in place.
There is no evidence before the Tribunal to suggest that the applicant’s business activities relate to the hiring of labour to other unrelated businesses. The Tribunal is satisfied that the nominated position is within the business activities of the nominator and not for hire to other unrelated businesses.
Accordingly, the requirement in r.5.19(4) (c) is met.
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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
In considering whether the business has the financial capacity to pay the nominee, the nominated full time salary of $55,000 per annum for at least two years, the Tribunal has taken into consideration evidence before it including the applicant’s most recent financial statements, documents submitted to the ATO and information which show the applicant has met payroll and operating costs for the last two years.
The Tribunal examined the financial information submitted by the applicant and notes that the applicant’s 2020/21 financial statements show that the business for the 2020/21 financial year reported revenue of $1,671,076 with a profit before tax of $11,552, net equity of $176,899 and retained earnings of $176,898.
At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on the business. The applicant told the Tribunal that international and domestic border closures has had an extensive impact on the business in so far as critical labour shortages have contributed to an increase in labour costs. The inability to harvest on time due to labour shortages has resulted in a 45% increase in wastage. Increased labour costs and wasted produce have contributed to a decline in sales revenue over the last financial year.
Whilst the lockdown restrictions will have some immediate impact upon the applicant’s revenue and profit, the applicant is a well-established producer and supplier of fruit and vegetables that has operated successfully for over a decade. The applicant is confident the COVID- 19 restrictions will not impact materially in the medium to long term.
In undertaking its assessment that the employee will be employed on a full-time basis in the position for at least 2 years the Tribunal has also taken into consideration the nominee has been employed by the applicant in a fulltime capacity since January 2018. The applicant and nominee’s bank account statements and PAYG’s support the nominee has received regular salary payments commensurate of the nominated salary amount and employer superannuation contributions have been paid.
The Tribunal has afforded consideration to the financial evidence before it and is satisfied on balance that the applicant has the financial capacity to pay the nominee a full-time salary of $55,000 per annum and maintain the employment of the nominee on a full-time basis for at least two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the nominee’s most recent contract of employment signed and dated 19 July 2021. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is full time and ongoing. The contract stipulates the salary is $70,000 per annum exclusive of superannuation. There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment contract dated 19 July 2021 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are 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 contract of employment dated 19 July 2021 sets out the terms and conditions of employment and indicates that the nominee will be employed on a full-time basis with remuneration of $70,000 per annum. The nominee’s leave entitlements include annual, personal, compassionate, parental and long service leave in accordance with the relevant legislation and National Employment Standards.
The Tribunal has received copies of the nominee’s payslips, PAYG’s and bank statements confirming that the nominee has been paid by the applicant the nominated salary amount of $55,000 per annum. The Tribunal notes that bank statements show that since late July 2021 the nominee has received fortnightly salary payments commensurate with $70,000 per annum. Superannuation information provided to the Tribunal, support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence before it that the nominee will be paid in accordance with the terms of employment.
The Tribunal is therefore satisfied on the totality of the evidence before it that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.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.
ADVERSE INFORMATION – Invitation to comment
On 3 September 2021, the Tribunal wrote to the applicant under s 359A of the Act. The invitation sought comments from the applicant and stated as follows;
‘….In conducting the review, we are required by the Migration Act 1958 to invite Woodside
Road Investments Pty Ltd to comment on or respond to certain information which we
consider would, subject to any comments or response it makes, be the reason, or a
part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
Department of Home Affairs records dated 2 September 2020 and 20 November
2020, show that the Department received allegations that the nominee Mr Lalabhai
Chandubhai Ravel provided false IELTS results to the Department. In regard to his
sponsorship, it is alleged that he is not working with the employer and is working
on a cash in hand basis and that “he and his employer are doing just paperwork for
PR”.
Regulation 5.19(4)(f)(i) requires that there is no adverse information known to
Immigration about the nominator or a person associated with the nominator. The
aforementioned information is relevant because it suggests that there is adverse
information known to Immigration about a person associated with the nominator and
there is no information currently before the Tribunal to suggest it is reasonable to
disregard this adverse information.
Additionally, Regulation 5.19(4)(h)(ii)(B) requires that there is a genuine need for the
nominator to employ a paid employee to work in the position under the nominator’s
direct control.
If the Tribunal relies on this information, it may find that you do not satisfy the
requirements of r.5.19(4) and consequently the decision under review would be
affirmed.
Woodside Road Investments Pty Ltd is invited to give comments on or respond to the above information in writing.’
On 17 September 2021, the applicant’s representative submitted the following response dated 16 September 2021, to the Tribunal:
‘…We write in response to your letter of 3 September advising that the Tribunal has received adverse information in relation to Mr Lalabhai Chandubhai Raval as follows:
Department of Home Affairs records dated 2 September 2020 and 20 November
2020, show that the Department received allegations that the nominee Mr Lalabhai
Chandubhai Ravel provided false IELTS results to the Department. In regard to his
sponsorship, it is alleged that he is not working with the employer and is working
on a cash in hand basis and that “he and his employer are doing just paperwork for PR”.
Our Client instructs that as far as Woodside Road Investments is aware, the TOEFL English Language Test result provided to the Department as part of Mr Raval’s application was correct. The Sponsor understands that the submitted results had been certified by a NSW Justice of the Peace (Attachment A). The Sponsor requested that Mr Raval contact TOEFL to obtain a letter of confirmation in relation to the results however, he was advised that they only hold the records for 2 years, after which time they are deleted from the system. (Attachment B). Our Client instructs that he has had no reason to question the veracity of the English language test results that Mr Raval obtained.
In relation to the second allegation. Our Client instructs that he rejects the claim that Woodside Road Investments were “just doing the paperwork for PR”. Our Client instructs that Mr Raval was initially employed part-time, as was consistent with his Student Visa and then employed fulltime once his studies were completed. As evidence of this we attach:
1.    Commonwealth Bank Statements for Woodside Road Investments for August 2019-2021 showing wages paid to Mr Raval for his wages. (Appendix A)
2.    PAYG Statements from Woodside Road Investments showing Mr Raval’s wages from 2019- 2021 (Appendix B)
3.    Payroll Advice from Woodside’s Accounting system showing payments to the Mr Raval for the period 2019 - 2021 (Appendix C)
4. Submission on the need for the employee (Appendix D)
While we appreciate the necessity of the Tribunal addressing the reports received by DOHA, our Client wishes to confirm its belief that the allegations that have been made in relation to MR Raval’s visa application are untrue.
Our Client confirms that Mr Raval works a 38 hours week in the position of Procurement Manager with the Company and that he is paid a wage by the Company directly into his nominated personal bank account. Further our Client confirms that the Company has a genuine and on-going need for the position for at least another 2 years and that there is no impediment to the work continuing beyond that time. In addition the position is under the Nominator’s direct control and therefore that the position meets all the requirements of Regulation 5.19(4)(h)(ii)(B).
We trust that the evidence supplied by our Client addresses the concerns the Tribunal has raised.’[1]
[1] Transcribed as prepared and submitted by the representative

In consideration of whether the information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B.
'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law, having become insolvent or has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading.
Regulation 2.57(1) provides that a 'competent authority' means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
The Tribunal has considered whether the allegations fall within the definition of ‘adverse information’ and notes that there is no evidence before the Tribunal at the time of this decision, to suggest that there is adverse information known to the Immigration within the meaning provided in r.1.13A and r.1.13B.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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 that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.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 instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain 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, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii).
In consideration of whether the applicant satisfies the requirements under r.5.19 (4)(h)(ii), all subclauses r.5.19(4)(h)(ii)(A) to r.5.19(4)(h)(ii)(F) must be met.
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Griffith NSW, postcode 2680 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Procurement Manager under the occupation of Contract Administrator (ANZSCO 511111) and for the tasks of that position.
The delegate refused the application on the basis the applicant’s nomination did not demonstrate a need for the nominee to be employed as a fulltime Procurement Manager at Woodside Road Investments Pty Ltd.
The Tribunal has formed a different view and accepts the evidence presented by the applicant that there is 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. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application. The Tribunal has had the opportunity to discuss with the applicant at the hearing the business need for the position including operational requirements and the history of the position.
In considering whether there is 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, the Tribunal has had regard to the evidence before it, including written statements and the oral evidence received at the hearing by Mr and Mrs Vardanega.
Mr and Mrs Vardanega gave evidence at the hearing that the position is key to the operational requirements of the business, in so far as the position of Procurement Manager is consistent with the nature of the applicant’s business in so far as being responsible for the administration of the business’s supply and customer contracts.
Mrs Varanega told the Tribunal that up until 2016 she undertook the tasks of the position. After the birth of her child she found it increasingly difficult to cover the position and struggled to do “everything”. The decision to nominate Mr Raval came about due to the difficulties the business has encountered in attracting and retaining long term, suitable staff. As the nominee had been working for the business via a contract labour hire arrangement and was known to the owners, the owners decided to give him an opportunity in the position and acknowledge through sponsoring him for a 187 visa, provides a degree of certainty that he will remain in the role (for at least two years).
The Tribunal discussed with the applicant the delegate’s remarks that ‘the nominated position has been vacant since the application in February 2018. This is a period of more than one and a half years as at the current date and that the business has therefore been operating without the nominated position’. The delegate formed the view that because the business had been operating without the nominee present and no further evidence had been provided indicating that the nominee is or has been working in the position, that the applicant did not demonstrate that there is a genuine need.
Mrs Vardanega told the Tribunal that she believed that the nominee commenced in the position around September/October 2017. The Tribunal notes evidence before it suggests that the nominee has worked in the position since January 2018, this is supported by the nominee’s PAYG’s, bank statements and payroll information. On the basis of this information the Tribunal is satisfied that the position is not vacant and has been occupied by the nominee since January 2018.
The Tribunal is satisfied on the evidence presented by the applicant that there is a genuine need for a paid employee to work in the occupation of Contract Administrator (ANZSCO 511111) under the nominator’s control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally and advice dated 20 December 2017 from Regional Development Australia Riverina Inc. attesting to local recruitment attempts. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal discussed with the applicant the position title of Procurement Manager and why the nominated occupation is Contract Administrator and not Procurement Manager. The applicant agreed that the two were separate occupations but could not provide a definitive response as to why the nominated occupation in this instance is Contract Administrator. In closing submissions to the Tribunal, the representative told the Tribunal that the level of work required by the role better reflects the skill level of a Contract Administrator as opposed to the occupation of Procurement Manager.
The Tribunal discussed with the applicant and nominee at the hearing the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation (Contract Administrator) under ANZSCO. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the applicant’s business and operational requirements and how the tasks of a Contract Administrator (as undertaken in the nominated position) are relevant to meeting these requirements.
Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Contract Administrator. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
Department records show that the nominee whilst studying in Australia, attained numerous certificates and diplomas including information technology, retail management and business. The nominee has been employed by the applicant in the position of Procurement Manager since January 2018.
Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that he is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.
The Tribunal notes the advice dated 20 December 2017 from the relevant RCB, Regional Development Australia Riverina Inc. indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.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.
Karen McNamara
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19 Approval 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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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 4202

11 October 2021

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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