Yame Australia Pty Ltd (Migration) - [2023] AATA 1526

Yame Australia Pty Ltd (Migration) [2023] AATA 1526 (24 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yame Australia Pty Ltd
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  1926653
HOME AFFAIRS REFERENCE(S):          BCC2019/2512222
MEMBER:Karen McNamara
DATE:24 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 May 2023 at 1:23pm
CATCHWORDS
MIGATION – application for approval of nomination of position – direct entry stream – retail manager – tasks of position – combined hearing of nomination and visa reviews – comprehensive and consistent evidence from owner/director and nominee – nominee’s autonomy and director’s competing managerial and personal responsibilities – comparison of tasks and ANZSCO description – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(10)(a), (12)(d)
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 2 September 2019 to reject the application by Yame Australia Pty Ltd (the applicant) for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant operates two Jamaica Blue Coffee Cafes under franchise agreement, located at Halls Head and Mandurah, Western Australia. The nominated position is located at the applicant’s Mandurah Cafe. The applicant purchased the Mandurah franchise in 2018. ASIC records show the nominating entity was registered on 9 May 2016.
On 13 May 2019, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the occupation of Retail Manager (General) (ANZSCO 142111). The nominated guaranteed annual earnings are $55,000. The application identified Mrs Kinzang Chhoden.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
On 2 September 2019, the delegate refused the application on the basis the applicant’s nomination did not satisfy regulation 5.19(10)(a) because the delegate was not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in a legislative instrument.
The Tribunal notes that this application is made under the Regional Sponsored Migration Scheme, therefore the application is required to be assessed under r.5.19(12)(d).
The applicant lodged an application for review with the Tribunal on 22 September 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
On 9 May 2023, the applicant represented by Mr Tiecai Feng (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 Mrs Kinzang Chhoden (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1930707). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. 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 and nominee were represented in relation to the review. The representative attended the Tribunal hearing.
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.
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 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. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
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).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. The position was identified, and a person was identified in relation to that position. An occupation in relation to the position was identified as was the subclass and stream to which the nomination relates. The nomination was accompanied by the applicable training contribution charge (as per reg 5.37).
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 Act, declared and signed by the applicant.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in r.5.19(2) and that r.5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
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.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(b) is met
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
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.
In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Retail Manager (General) (ANZSCO 142111), and the date of application is 13 May 2019.
The Tribunal is unaware of mandatory requirements for a Retail Manager 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. In this instance the mandatory license or registration provisions stated in 5.19(4)(c) are not relevant.
Accordingly, the Tribunal is satisfied that r.5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
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.
There is no evidence before the Tribunal that indicates the nominator does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the Tribunal is satisfied that r.5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
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.
There is no evidence before the Tribunal, that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
Accordingly, the Tribunal is satisfied that r.5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The Tribunal accepts on the evidence before it that the applicant operates Jamacia Blue Café franchises at Mandurah and Halls Head, Western Australia. Based on the material provided to the Tribunal, including financial statements, BAS returns, Trust Tax returns and ASIC Company details, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia.
Accordingly, the Tribunal is satisfied that r.5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
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.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the Tribunal is satisfied that r.5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
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.
In considering whether the application for approval identifies a need for the identified person to be employed in the position, under the direct control of the nominator, the Tribunal has had regard to the evidence before it. This includes the oral evidence received at the hearing and written submission from the applicant (undated) provided to the Tribunal on 1 November 2022.
At the hearing, the applicant told the Tribunal, the need to employ the nominee to work in the nominated position is critical to the operational and business needs of the business to ensure the business remains viable and continues to grow. The applicant whilst overseeing both cafes, concentrates his time on managing the daily operations of the Halls Head franchise whilst juggling family responsibilities.
The Tribunal is satisfied on the information before it, that the application for approval identifies a need for the identified person to be employed in the position, under the direct control of the nominator. Accordingly, the requirement in r.5.19(9)(c) is met.
The applicant has provided submissions to the Tribunal detailing the genuine need for the position, in addition to position descriptions and job advertisements indicating the objective of the role and the contribution of the position to the applicant’s business.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports there is a genuine need for the identified person (the nominee) to be employed in the position, under the direct control of the nominator (the applicant). In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's work history with the nominator.
The Tribunal is satisfied on the evidence before it, that there is a business need for the position which supports the genuine need for the nominee to be employed in the position under the direct control of the nominator. Accordingly, the requirement of r.5.19(9)(d) is met.
On the totality of evidence before it, the Tribunal is satisfied that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator and the need is genuine.
Accordingly, the Tribunal is satisfied that r.5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
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.
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.
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.
The Tribunal has had regard to the applicant’s financial information as provided to the Tribunal, the nominee’s contract of employment and information contained on the Department and Tribunal files in regard to market salary research undertaken by the applicant.
The nominee’s contract of employment signed and dated by the parties on 15 April 2019, sets out the terms and conditions of the nominee’s employment and indicate that the agreement will commence upon approval of the nominee’s Subclass 187 visa and shall continue for a period of at least two years. The contract stipulates the salary is $55,000 exclusive of superannuation with ordinary hours of work 38 hours per week. There is no term excluding an extension of the contract.
In considering whether the business has the capacity to pay the annual market salary rate for the occupation (in this instance identified as $54,162 per annum) to the nominee for at least two years, the Tribunal has taken into consideration evidence before it, including the applicant’s financial statements, BAS returns, and payroll records, which show the applicant has demonstrated its capacity to meet payroll and operating costs.
The Tribunal has also taken into consideration the nominee’s employment history with the applicant and notes that the applicant left the applicant’s employment during COVID 19 lockdowns, due to downturn in the business. Evidence before the Tribunal shows that the applicant resumed full time employment with the applicant in October 2022. The nominee’s bank account statements, Income Statements, and applicant’s payroll records, support the nominee has received regular remuneration exceeding the annual market salary rate.
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)
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. 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 IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 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 temporary skilled migration income threshold specified in the instrument IMMI 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).
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings are $55,031 plus superannuation. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.

The Tribunal has considered the evidence before it, and is satisfied that the applicant in determining the annual market salary rate for the position, undertook salary market research including reference to Seek, Indeed, Job Outlook, Payscale and Neuvoo.
The applicant has provided industry salary survey information on Neuvoo, Job Outlook, Pay scale and advertisements posted on indeed and Seek websites. Neuvoo data notes the salary range for a Retail Store Manager in Australia is $46,500 to $90,000 with the median salary of $58,000. Job Outlook shows a median salary of $52,000. PayScale shows the salary range from $44,107 to $69,305 with the median amount of $52,487. Advertisements posted on indeed show a salary range of $50,000 to $55,000 per annum and on Seek show an advertised salary of $53,000 per annum.
The nominee’s Contract of Employment show that the nominee’s annual earnings are $55,000 per annum exclusive of superannuation. The nominee’s payroll records, and bank statements show that the nominee has been paid this amount. This amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specified this as $53,900). There is no evidence before the Tribunal to indicate that the annual market salary rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.
The Tribunal is satisfied that annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings (as indicated in the nominee’s payroll records and bank statements) of $55,031 will not be less than the market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as evidenced in the nominee’s payroll records and bank statements, exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
For these reasons the requirements of r.2.72(15) are satisfied.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
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.
The Contract of Employment dated 15 April 2019, sets out the terms and conditions of employment and indicates that the nominee’s salary will be $55,000 per annum exclusive of superannuation with hours of work 38 per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal is satisfied on the totality of the evidence before it that there is no evidence before the Tribunal to indicate that there is 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.
Accordingly, the Tribunal is satisfied that r.5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
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. Nominations identifying a Subclass 187 visa can only be made before 16 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).
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Mandurah, Western Australia, postcode 6210 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(12)(a) and (b) are 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 at the hearing that they have been unsuccessful in sourcing an experienced and suitable Australian citizen or an Australian permanent resident to the position, and the challenges the applicant has faced in attracting and retaining staff to work at his cafes located at Halls Head and Mandurah. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally.
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(12)(c) are met.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(10)(a) of the Regulations. As noted previously in this decision the Tribunal notes that this this application is made under the Regional Sponsored Migration Scheme, therefore the application is required to be assessed under r.5.19(12)(d).
The delegate was not satisfied “that the majority of the tasks that the nominee is actually likely to perform, align substantially with the tasks of the nominated occupation of a Retail Manager”.
The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the tasks and duties of the position.
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 additionally had the opportunity to discuss with the applicant and the nominee at the hearing, the precise tasks, and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO. Both the applicant and nominee provided consistent and comprehensive details of the tasks associated with the position. The Tribunal considers the evidence provided by the applicant and nominee to be representative of the tasks reasonably associated with that of a Jamacia Blue franchise retail manager.
For nominations made on or after 1 July 2015, regulation 5.19(4)(h)(ii)(D) requires the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument.[1] This requires a qualitative analysis of whether the position is what it really purports to be in a practical sense, which is more than a line by line comparison of the tasks for example in the employment contract and the tasks of ANZSCO description.[2] It is a question of fact and the weight the decision maker gives to various considerations and evidence is a matter for it.[3]
[1] reg 5.19(4)(h)(ii)(D) as amended by SLI 2015, No 103.
[2] Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758 at [34]–[37]. The Court accepted that the qualitative analysis required for reg 2.72(10)(f) (whether the position associated with the nominated occupation is genuine) endorsed in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 was applicable to reg 5.19(4)(h)(ii)(D) assessment of whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument.
[3] In Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5, the Court found that it was open for the Tribunal to consider not only the documentary material but the oral evidence at hearing concerning the nominee’s role, and the Tribunal was not bound to treat the description in the contract as definitive but was open to take preference for one evidence over another (at [66]-[69]).
The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 142111 for the occupation Retail Manager (General) and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided comprehensive description of the daily duties and tasks carried out by the nominee and the reporting relationship of the position to the owner/Director, including autonomy as designated to the nominee by the Director and the Director’s competing managerial and personal responsibilities.
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 afforded consideration to the environment in which the business operates, the size of the business and operational requirements, the autonomy of the position in regard to decision making and how the tasks of a Retail Manager (General) (as undertaken in the nominated position) are relevant to meeting these requirements.
Having afforded consideration to the evidence before it, the Tribunal is satisfied that the tasks to be performed in the position, correspond to the tasks of a Retail Manager (General). Accordingly, the requirements of r.5.19(12)(d) are met.
The occupation of Retail Manager (General) (ANZSCO 142111) is referred to in ANZSCO as a skill level 2 position. The Tribunal has considered evidence supporting the nominee’s suitability in so far as her experience and qualifications for the position. Department records show that the nominee holds relevant to the position a Master of Human Resource Management attained from Edith Cowan University. Department records show the nominee worked as a Retail Manager in Bhutan for approximately four years. The applicant recommenced employment with the applicant in October 2022 and has continued to work in the nominated position since.
Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that she is suitably qualified for the position and that the nominee is operating at the appropriate skill level.
Accordingly, the requirements of r.5.19(12)(d) and ( e) are met.
The Tribunal has cited the completed Form 1404 dated 27 June 2019 from the relevant RCB, Government of Western Australia, Department of Training and Workforce Development, indicating that they are satisfied that the identified person would be paid at least the annual market salary rate for the occupation; there is a genuine need for the identified person to be employed in the position under the direct control of the nominator; and the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.
Accordingly, the requirements of r.5.19(12)(f) and (g) are met.
Given the above findings, the Tribunal is satisfied that r.5.19(12) is met. Accordingly, r.5.19(9)(j) is also 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.
Karen McNamara
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.
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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.
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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.