Yippy Tri-Smith Pty Ltd in trust for Grant Smith Family Trust (Migration)

Yippy Tri-Smith Pty Ltd in trust for Grant Smith Family Trust (Migration) [2022] AATA 3974 (11 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yippy Tri-Smith Pty Ltd in trust for Grant Smith Family Trust
REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)
CASE NUMBER:  1908009
HOME AFFAIRS REFERENCE(S):         BCC2018/1268724
MEMBER:P. Maishman
DATE:11 November 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 November 2022 at 3:47pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – retail manager – tasks of position – manager or supervisor – combined hearing of nomination and visa reviews – oral and documentary evidence – comparison of nominee’s tasks and ANZSCO descriptions – nominee’s qualification and performance of tasks – financial capacity to employ nominee for two years – use of certified accountants and managed loss for tax purposes – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d), (h)(ii)(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 27 March 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 16 March 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 for a Retail Manager, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied the tasks to be performed in the nominated position correspond to the tasks of an ANZSCO Retail Manager (142111).
Mr Grant Smith, on behalf of the applicant, appeared before the Tribunal on 26 October 2022 and 11 November 2022 to give evidence and present arguments. The Tribunal held a combined hearing with the nominee identified in the nomination, Mr Harshit Mauleshkumar Patel, who also appeared before the Tribunal.
The applicant was represented in relation to the review.
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 Tribunal had a copy of the Departments file including the nomination application.
The applicant gave the Tribunal a copy of the delegate’s decision record.
On 7 March 2022 the Tribunal wrote to the applicant and advised it must be satisfied that all of the relevant criteria in reg 5.19(2) and (4) are met at the time of its decision for the nomination of a position to be approved. The Tribunal invited the applicant to provide updated and current information addressing all the criteria.
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.
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 and was accompanied by the prescribed fee. The applicant has provided the relevant certification on the application form that the applicant has not engaged in any conduct in relation to this nomination that constituted a contravention of s 245AR(1) of the Act. Accordingly, the requirements of reg 5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ Harshit Patel as a paid employee to work in the position of Retail Manager (ANZSCO 142111) under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including the further documents provided by the applicant after lodging its application for review.
The Tribunal accepts that the applicant identified a need to employ an identified person to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
ASIC records and BAS statements confirm the applicant is registered and actively trading.
The Tribunal is satisfied that the applicant is actively and lawfully operating a 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.
There is no evidence before the Tribunal to indicate that the applicant’s business is involved in labour hire. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal was concerned the document provided by the applicant in respect of its financial position suggested a significant income loss and significant asset deficit. The applicant explained they use certified accountants and work on a model of managed loss. This minimises their tax obligations. Mr Smith expects to be in a surplus position in the most recent financial year because most of their depreciating asset’s write-offs have been exhausted. Mr Smith stated that he has a strong relationship and line of credit with institutions including the Commonwealth Bank. Mr Smith stated the applicant has never been in a position where it could not meet its debts or pay its creditors.
It is now well over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has been employed by the applicant company as a Manager since that time. The Tribunal is satisfied that the applicant has the financial capacity to meet the nominee’s employment salary for at least the next two years. Further, the Tribunal has had regard to the terms and conditions of employment as set out in the letter of offer dated 27 August 2022. The contract indicates that it is for full-time, ongoing permanent employment. There is no clause that excludes the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal was concerned the applicant provided little information to support that the terms and conditions of the nominee’s employment would be no less favourable than an Australian citizen or permanent resident working in the same workplace at the same location. Mr Smith told the Tribunal less senior employees are covered by the appropriate award. The remuneration of retail managers, of whom the nominee is the number one and supervising retail manager, are paid salaries in accordance with amounts suggested by the McDonald’s franchise. Mr Smith stated the nominee’s terms and conditions included paid lunch breaks, personal and recreation leave entitlements, and provision for superannuation. Mr Smith stated that the nominee’s financial remuneration was significantly in excess of the less senior retail managers.
The Tribunal conducted its own research through online salary survey websites to determine average salaries for a retail management role in Australia. Jora Salaries indicates a salary range for Retail Management roles in Australia is $50,000 to $90,000. SEEK salary survey indicates average salary to be between $55,000 and $65,000. Payscale.com records a salary range of $48,000-$72,000 with an average salary of $55,507.
The Tribunal is satisfied the remuneration offered to the nominee is at the higher end of the salary range indicated by the online survey sites. The Tribunal is satisfied the leave entitlements and other terms and conditions of the nominee’s employment are in line with the minimum employment standards and no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same location.
Accordingly the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person associated to the nominator. The applicant provided a written letter confirming it is unaware of any monitoring or adverse information.
Accordingly the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Mr Smith told the Tribunal a legal action has been brought by the Shop Distributers Alliance (SDA) against all McDonald’s licensees in Australia alleging underpayment of entitlements during staff breaks. As Mr Smith understands it the matter is unlikely to be dealt with until the end of 2026. Mr Smith said there was no other workplace relations issues he was aware of.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
Accordingly the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) but can be briefly summarised as requiring that the position and nominator’s business is located in regional Australia; there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control; the position 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.
Location of the position and the business
The Tribunal first considered reg 5.19(4)(h)(ii)(A) and (E) which provide that the position is located in regional Australia and the applicant’s business is located at that place. Regulation 5.19(7) provides that 'regional Australia' is defined by the legislative instrument, in this case IMMI 17/059.
In this case, the position is located at the business premises in Eaton, Western Australia, 6232, and at the time of application, this location/postcode was considered regional Australia, as per Schedule 2 of IMMI 17/059.
The Tribunal is satisfied that the position and the nominator's business are located in regional Australia.
As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.
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
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control. Subparagraph 5.19(4)(ii)(h)(C) requires that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
Mr Smith provided a letter dated 18 April 2018 and an email dated 10 August 2018 outlining the positive impact the nominee is having on his business. Mr Smith gave oral evidence outlining the difficulties he had filling the position. The Tribunal noted the applicant had only provided an advertisement from 2018. Mr Smith gave evidence the applicant had continued to advertise through 2020 and 2021 and did not have a suitable applicant apply at any time. The nominee is the most professional and qualified candidate for the position. The applicant also noted the current extreme difficulty attracting staff to regional areas in Western Australia.
The applicant provided examples of tasks undertaken by the nominee.
The Tribunal takes into account the Regional Certifying Body advice it received on 25 October 2022. The RCB assesses there is a genuine need for the nominee to be employed as a retail store manager in the nominated position under the nominator’s direct control; the nominated position cannot be filled by an Australian citizen or permanent resident; and the terms and conditions of employment will be no less favourable than those offered to an Australian citizen or permanent resident.
The Tribunal is satisfied that there is a genuine need for the applicant, as the nominator, to employ the nominee to work in the position of retail store manager under the nominator’s direct control. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly, reg 5.19(4)(ii)(h)(B) and reg 5.19(4)(ii)(h)(C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument IMMI 17/059.
The delegate was not satisfied that the duties of the nominated position corresponded closely enough to the ANZSCO occupation of Retail Manager (ANZSCO 142111), finding that they were closer to those of a Retail Supervisor (ANZSCO 621511). The significance of this distinction is that the occupation of Retail Manager is a skill level 2 occupation and is specified in the relevant legislative instrument, IMMI 17/058. However, the occupation of Retail Supervisor is a skill level 4 occupation and is not specified in the relevant instrument.
As to whether the task of the particular position nominated by the applicant corresponds with the occupation of Retail Manager, the Tribunal has had regard to the comprehensive material provided in support of the review application, including evidence that was not previously available to the delegate at the time of decision, as well as the further oral evidence provided to the Tribunal during the hearing.
The respective ANZSCO occupational descriptions for a Retail Manager and a Retail Supervisor (which has its own Unit Group) are as follows:
UNIT GROUP 1421 RETAIL MANAGERS
RETAIL MANAGERS organise and control the operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
odetermining product mix, stock levels and service standards
oformulating and implementing purchasing and marketing policies, and setting prices
opromoting and advertising the establishment's goods and services
oselling goods and services to customers and advising them on product use
omaintaining records of stock levels and financial transactions
oundertaking budgeting for the establishment
ocontrolling selection, training and supervision of staff
oensuring compliance with occupational health and safety regulations

Occupations:
142111 Retail Manager (General)
142112 Antique Dealer
142113 Betting Agency Manager
142114 Hair or Beauty Salon Manager
142115 Post Office Manager
142116 Travel Agency Manager

142111 RETAIL MANAGER (GENERAL)

Alternative Titles:
Retail Store Manager
Shop Manager

Organises and controls the operations of a retail trading establishment.
Retail Pharmacists are excluded from this occupation. Retail Pharmacists are included in Unit Group 2515 Pharmacists, in Occupation 251513 Retail Pharmacist.
Skill Level: 2
Specialisations:
Fast Food Manager
Newsagent
Retail Bakery Manager
…
UNIT GROUP 6215 RETAIL SUPERVISORS
RETAIL SUPERVISORS supervise and coordinate the activities of retail sales workers.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate II or III (ANZSCO Skill Level 4)

In New Zealand:
NZQF Level 2 or 3 qualification (ANZSCO Skill Level 4)

At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oensuring that customers receive prompt service and quality goods and services
oresponding to customers' inquiries and complaints about goods and services
oplanning and preparing work schedules and assigning staff to specific duties
ointerviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
oinstructing staff on how to handle difficult and complicated sales procedures
oexamining returned goods and deciding on appropriate action
otaking inventory of goods for sale and ordering new stock
oensuring that goods and services are correctly priced and displayed
oensuring safety and security procedures are enforced
Occupation:
621511 Retail Supervisor

621511 RETAIL SUPERVISOR

Alternative Titles:
Checkout Supervisor
Sales Department Supervisor

Supervises and coordinates the activities of retail sales workers.
Skill Level: 4

The applicant provided a job description detailing the nominee’s tasks against those in ANZSCO 142111.
Determining Food Costs and Stock Levels of McDonalds Collie and Eaton
- Oversee’s and is accountable for product mix, stock levels and service standards for 2 restaurants.
- Stock levels must reflect projectied sales of each restaurant ensuring all food options are always available to our guest
- Collaborates and contribute to the setting of targets in these areas with the Licensee, and
- communicates and follows up with each of the managers in the restaurants
- Ensures these targets are aligned with the sale projections of the restaurants, and the number of
- guests we anticipate serving over the week
- Formally reviews targets with each of the restaurant managers to identify opportunities to achieve targets, and modify these targets daily, reflecting and increases or decreases in trade
- On a daily basis reviews stock levels in both restaurants are supplied with the right amount of food
- to service our guest to maximise profits and minimise food wastage
Formulating and implementing purchasing and marketing policies and setting prices
- McDonald’s has a national marketing plan managed through the Sydney head office that Harshy delivers on a local level. Harshy review the national campaign and tailors it specifically to our two restaurants
- Harshy selects signage reflecting marketing opportunities of McDonald’s and the needs of the community. An example of this is create more McCafe signage during the colder months and changes out this creative to cooler drinks in the simmer months.
- Harshy also targets specific needs of both restaurants and arranges the printing of creative to address these needs. An example of this is a hiring for crew drive in which Harshy has erected banners in our drive thru’s to encourage job applications
- Harshy also has the authority to confirm local sponsorships with community groups. Our business has a passion to see young kids engaged in structured sport, so Harshy actively look for opportunities where our organisation can assist the development of junior sport. These types of actions have resulted in our organization sponsoring The Eaton Recreational Centre, Bunbury Water polo, Collie Swimming Club, the Collie Basketball Association and Australind Tennis
Promoting and advertising the establishment’s goods and services
- The promotion and advertising of our products is best done when we provide an outstanding customer service to our guest. This stops and starts with Harshy
- In his role Harshy must ensure the training of new crew is correct and that e set and role models service expectations. This is done when he works shoulder to shoulder with new crew making sure they deliver the service expectations of our restaurants.
- Harshy constantly monitors finished products for quality, and communication enthusiasm by of crew when they serve our guests. If he identifies opportunities, he will quietly ask to speak to the crew member quietly and privately, and reinforce our restaurants expectations by going through our modelling and training processes again
Selling goods and services to customers and advising them on product use
- Not so much applicable to our business except for understanding dietary needs of vegans and gluten free customers. Harshy is constantly up to date with new burgers understanding their ingredients ensuring he is aware how these may affect the special needs diets of our guests
- Harshy communicates any changes through a formal meeting with managers to ensures they are familiar where our Food Allergy Manual published by McDonald’s Australia is located for quick reference.
Maintaining records of stock levels and financial transactions
- I work closely with the Licensee in establishing financial targets supporting a profitable Profit and Loss.
- Harshy contributes to the setting of targets around food costs, labour costs and, maintenance & repair and communicates and follows up with both restaurant managers to achieve Harshy offers follow up with both restaurants manages providing direction and advice on how to best achieve profit whilst not removing our high-quality service to our guests
- The most important time in the financial accountability of a McDonald’s restaurant is called “Month End”. This requires Harshy to lead managers through a thorough stock take of the restaurant, accept all outstanding invoices for food, maintenance and repairs and close out all labour costs.
- Once this is done, Harshy prepares a profit and loss statement to the Licensee who authenticates all figures for submission to McDonald’s, his bank, and his accountant
Undertaking budgeting for the establishment
- Harshy oversee’s the entire budget for both restaurants. These budgets relate to labour costs, food costs, and maintenance and repair of restaurant equipment.
- He is responsible for all business costs and that they are in line with our budgeted expectations targets. If they are not, Harshy is required to adjust (ie. Delay the repairs of equipment) to ensure both restaurants always remain profitable
Controlling selection, training, and supervision of staff
- Whilst Harshy does not conduct the interview meetings of new crew members, he works closely with hiring managers notifying them when we have hiring needs.
- He communicates these needs with the hiring manager and confirms the positioning of new crew once hired ie. McCafe Crew, Back of House Crew, Front Counter Service Crew Harshy then co-ordinates with the rostering manager on the placement of new crew on the roster making sure their training needs reflect their roles and that they are supported to succeed
- Harshy is 100% accountable for the identification and training of new managers. In this accountability he personally identifies talent for progression within our organisational and coordinate McDonald’s based training to further their learning.
- Harshy co-ordinates and publishes manager rosters to ensure the needs of the restaurant are addressed whilst arranging the training/ support needs of new managers
Ensuring compliance with occupational health and safety
- Our business is fully reviewed once a year ensuring we are compliant in all areas of Workplace Health and Safety. Since Harshy’s employment with he has successful lead both restaurant teams through three successful years of external audits
- This accountability requires Harshy to co-ordinate and run and minute Workplace Health and Safety meetings on a quarterly bases identifying hazards, nears misses, and procedures to address potential risks.
- Harshy co-ordinates and rosters the delivery Fire safety training and First Aid training for the management teams in both restaurants which is 12mth compliance minimum.
Mr Smith told the Tribunal the nominee is completely responsible for the day to day operations of two stores. He is responsible for the superviosn and development of six less senior restaurant managers.
The Tribunal has also had regard to the Organisational Chart provided to it by the applicant and the location of the nominated position within the hierarchy of its company. The Organisational Chart indicates that the nominated position reports to the applicant. From this, the Tribunal concludes that the nominated position is primarily responsible for managing the day to day operations of the Eaton store.
Accordingly, in the circumstances of this case, the Tribunal is satisfied that tasks associated with the nominated position sufficiently correspond to those of the occupation of Retail Manager (General) (ANZSCO 142111), being an occupation that is specified in IMMI 17/059. The Tribunal further finds that the tasks of the nominated position appear to be vastly more complex and require significantly more skill than the tasks identified for a Retail Supervisor, having regard to the size, scope and nature of the business.
The Tribunal notes the applicant has provided a VetAssess skills assessment confirming the Diploma of Leadership and Management awarded by McDonalds is assessed as being comparable to the educational level of an AQF Diploma. The Tribunal is satisfied the occupation is applicable to the nominee in accordance with the specification of skill level 2 in the ANZSCO.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and (DA) are met.
Regional Certification
Regulation 5.19(4)(h)(ii)(F) requires that a Regional Certifying Body (RCB) has advised the Minister about:
·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location: reg 5.19(4)(e);
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer; reg 5.19(4)(h)(ii)(B);
·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position: reg 5.19(4)(h)(ii)(C).
The Tribunal observes the delegate noted in its decision the applicant did not provide a Regional Certifying Body (RCB) advice. The applicant gave the Tribunal an undated regional certifying body advice on 25 October 2022. The RCB assessed nomination against
a.whether the identified person would be paid at least the annual market salary rate for the occupation;
b.whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator; and
c.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.
The RCB assessor determined that the nomination satisfies those requirements.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets reg 5.19(4)(e) , reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the RCB advice, the Tribunal is satisfied that the requirements of reg 5.19(4)(h)(ii)(F) are met by provision of the advice.
Accordingly the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
P. Maishman
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ an identified person, as 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).

[2022] AATA 3974

11 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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