Bharaj Construction Pty Ltd v MIBP [2024] AATA 95 | Case summary | Zoe

CTHAATA

Bharaj Construction Pty Ltd v MIBP

[2024] AATA 95

Administrative Appeals Tribunal of Australia|2024-01-18

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At a glance

AI case summary

Result

appellant. The Tribunal set aside the decision under review and substituted a decision approving the nomination.

Key principles

The Tribunal will approve a Direct Entry nomination under reg 5.19(4) where all statutory criteria in that subregulation are satisfied on the evidence; in this case the Tribunal...
Evidence of modest profits in recent financial statements, combined with demonstrable ongoing employment (payslips) and employment contracts that do not expressly exclude...
Certification or advice from a regional certifying body is material but not determinative; the Tribunal must form its own view on the matters the regional certifying body...
Where a review applicant fails to provide information within a prescribed period after an invitation under s 359, ss 359C and 360(3) may remove any entitlement to appear and s...

Issues before the court

Whether the nominator had the financial capacity to employ the nominee for at least two years (reg 5.19(4)(d)(i) and (ii)).
Whether certification by a regional certifying body is sufficient to satisfy the requirements in reg 5.19(4)(h)(ii)(B),(C) and reg 5.19(4)(e).

Plain English Summary

The Administrative Appeals Tribunal reviewed a delegate's refusal to approve an employer nomination for a restaurant manager. The delegate had refused because they were not satisfied the employer could afford to employ the nominee for two years. The Tribunal reviewed the employer's financial statements, tax returns, payslips showing ongoing employment, employment contracts and salary benchmarking data. The Tribunal found the employer had the financial capacity and that the terms of employment were no less favourable than for comparable Australian workers. The Tribunal also treated regional certifying body advice as informative but not conclusive, and excluded material supplied after the deadline because the applicant had no entitlement to a hearing after failing to respond in time. The Tribunal set aside the delegate's refusal and approved the nomination.

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Deep Dive

1,830 words · generated 29/07/2026

What happened

Continental Foods Pty Ltd applied on 4 March 2018 for approval of a Direct Entry nomination under reg 5.19 of the Migration Regulations, identifying Mr Kapil Bhatia as an intended Restaurant Manager (ANZSCO 141111). A delegate refused the nomination on 26 February 2020, concluding the nominator lacked the financial capacity to sustain employment of the nominee for at least two years as required by reg 5.19(4)(d). The applicant sought review in the Administrative Appeals Tribunal.

The Tribunal invited the applicant to provide updated information under s 359 of the Migration Act; the invitation was sent on 11 August 2023 with a stated deadline (the decision record records the deadline as 25 August 2024, though the Tribunal notes the applicant did not supply material within the prescribed period). The applicant subsequently provided material on 28 and 29 August 2023, but the Tribunal determined that, because the applicant had not complied with the invitation within the time and had not been granted an extension, the statutory provisions (s 359C and s 360(3)), together with s 363A and the authority of Hasran v MIAC, meant the applicant had no entitlement to appear and the Tribunal had no power to permit appearance. The Tribunal therefore proceeded without regard to the late material [see Statement of Decision paras 5-7].

Having considered the Department file and the admissible evidence (ASIC registration, business trading as Sforno, financial statements and tax returns for 2022 and 2023, payslips evidencing the nominee's employment since at least 15 June 2020, employment contracts, organisation chart, Form 1404 from the regional certifying body, job advertisements and remuneration benchmarking), Member Maishman was satisfied that each element of the Direct Entry criteria in reg 5.19(4) was met. The Tribunal set aside the delegate's decision and substituted a decision approving the nomination (Decision) (final disposition).

Why the court decided this way

The Tribunal’s reasoning followed a straightforward statutory-merits approach: reg 5.19(4) sets out cumulative criteria. If each criterion is satisfied on the evidence before the decision-maker, approval must be granted.

Key elements of the Tribunal's reasoning were:

Compliance with form/fee and identification of the employment need (reg 5.19(4)(a)): the Tribunal accepted that the application was in approved form, included the required certification and paid the fee (see section headed "The application is compliant: reg 5.19(4)(a)").
The nominator is actively and lawfully operating the business and directly operates it (reg 5.19(4)(b)): ASIC records, declared trading name and financial reports led the Tribunal to accept the business was lawfully operating at Munno Para (see "Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)").
The position was not labour hire and would be in the nominator’s direct employ (reg 5.19(4)(c)): evidence of the employment contract and organisation chart satisfied the Tribunal on that point.
Financial capacity and term of employment (reg 5.19(4)(d)): the delegate had refused for lack of financial capacity. The Tribunal placed weight on the 2022 and 2023 financial reports and tax returns showing modest profits, together with payslips showing the nominee was employed since at least 15 June 2020 and employment contracts that did not expressly exclude extension. On that basis the Tribunal concluded the nominator had the capacity to employ the nominee for the requisite period and the contract did not preclude extension (see "Term of employment of the visa holder: reg 5.19(4)(d)").
No less favourable terms and conditions (reg 5.19(4)(e)): the employer offered $65,000 p.a., exclusive of superannuation, and the Tribunal compared this against salary data from SEEK, PayScale and Job Outlook. The Tribunal concluded the offered terms were at the higher end of available ranges and therefore no less favourable (see "No less favourable terms and conditions of employment: reg 5.19(4)(e)").
Regional criteria, tasks and training (reg 5.19(4)(h)(ii)): the Tribunal accepted that Munno Para was regional for the purpose of the instrument in force at the time, that the position could not be filled locally having regard to advertised vacancies and the RCB opinion, that the tasks corresponded to ANZSCO 141111, and that the nominee’s Diploma made the occupation applicable (see "Tasks of the position... reg 5.19(4)(h)").
Regional Certifying Body advice (reg 5.19(4)(h)(ii)(F)): the Tribunal accepted the Form 1404 from the South Australian Department of State Development but emphasised that such certification is not decisive, the Tribunal must form its own view, consistent with Bharaj Construction Pty Ltd v MIBP.

Procedurally, the Tribunal applied the statutory regime for invitations and entitlement to appear. The Tribunal excluded late material because the applicant had not complied with the invitation in time and no extension was granted; the Tribunal relied on ss 359C and 360(3), and s 363A (and cited Hasran) when concluding it had no power to permit an appearance or to admit the late evidence.

In sum, the Tribunal was able to reach a merits conclusion in favour of the applicant based on the admissible evidence on file.

Before and after state of the law

Before this decision, the statutory position is unchanged: reg 5.19(4) has always been the controlling provision for Direct Entry nominations. Two points of jurisprudential significance are reiterated:

Regional certifying body advice is material but not determinative. The Tribunal expressly adopts the position articulated in the Federal Circuit Court decision Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902; while a Form 1404 is required, the Tribunal must ultimately satisfy itself that the regulatory criteria are met.
The procedural limitation on admission of late evidence after a s 359 invitation is effective: s 359C and s 360(3) can remove an applicant's entitlement to a hearing and s 363A prevents the Tribunal from permitting an appearance once entitlement is lost; the Tribunal relied on Hasran v MIAC as authority for that proposition.

After this decision, the practical guidance for practitioners is clear: where an applicant has been invited to provide material under s 359, failure to comply in time (and without an extension) risks the Tribunal proceeding on the existing record and excluding late material; and, on merits review, tribunals will scrutinise the same types of commercial evidence (financial reports, tax returns, payslips, contracts, RCB advice and remuneration benchmarking) to determine whether each element of reg 5.19(4) is met.

This decision does not alter legal principles, but it confirms how the Tribunal will weigh the common categories of evidence and reinforces the non-determinative status of RCB certification.

Key passages with plain-English translation

"The Tribunal sets aside the decision under review and substitutes a decision approving the nomination."
- Plain English: The Tribunal overturned the delegate's refusal and replaced it with an approval of the employer nomination.
"The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking into account the information that was provided on 28 and 29 August 2023."
- Plain English: Because the applicant missed the Tribunal’s deadline to give more information and had no right to a hearing after that, the Tribunal could not accept the late evidence and decided the case based on the material it already had.
"Consistent with the decision ... in Bharaj Construction Pty Ltd v MIBP ... certification by a regional certifying body is not sufficient or determinative ... Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions..."
- Plain English: The Tribunal will look at the regional body's advice but will not simply accept it; the Tribunal must make its own independent judgment about whether the regulatory criteria are satisfied.
"The Tribunal is satisfied the has the financial capacity to employ the nominee for at least two years and there is no express exclusion to the nominee's employment being extended."
- Plain English: After looking at the company’s financial documents, payslips and contracts, the Tribunal believed the employer could afford to keep the nominee employed for at least two years and the contract did not prevent an extension.

What fact patterns trigger this precedent

This decision is directly relevant when:

An employer nominates a specific person under the Direct Entry stream (reg 5.19(4)) and the delegate refuses based on perceived lack of financial capacity to sustain the employment term required by the regulations.
An applicant fails to respond to a Tribunal s 359 invitation within the time specified and then supplies material after the deadline.
A regional nominator relies on Form 1404 certification from an authorised regional certifying body and expects that certification alone will secure approval.

In such fact patterns, practitioners should ensure timely compliance with AAT invitations, maintain contemporaneous financial records and payslips showing ongoing employment, ensure employment contracts do not undermine the statutory requirement for at least two years, and prepare RCB certification as supportive evidence rather than conclusive proof.

How later courts have treated it

This decision itself cites earlier authorities (Bharaj Construction and Hasran) and applies their principles. The decision record does not discuss any later appellate treatment of its own reasoning. Therefore, within this decision you will not find analysis of how later courts have treated Continental Foods; it remains a Tribunal merits decision applying established authority. Users should check subsequent decisions and appellate courts for any adoption, distinction or reversal of the principles applied here.

Still-open questions

Several practical and doctrinal questions remain for future cases:

Quantifying financial capacity: The Tribunal found modest profits together with payslips and contracts sufficient. What precise quantum or standard of proof constitutes 'financial capacity' in marginal cases is still a fact-sensitive question and remains open for further refinement by appellate courts.
Interaction between RCB advice and Tribunal fact-finding: While the Tribunal stressed RCB certification is not determinative, the boundary between giving appropriate weight to the RCB’s regional labour-market assessment and undertaking independent labour-market inquiries could generate contested outcomes in other factual scenarios.
Timing/format of s 359 invitations and consequences: The decision records an apparent date inconsistency for the deadline in the invitation (the document records a 2024 deadline though the invitation was in 2023). The statutory framework is clear about consequences of non-compliance, but administrative practice (clarity of deadlines, extensions, and procedural fairness) may remain sensitive where inadvertent administrative error or ambiguity exists. That procedural nuance could attract litigation if a tribunal’s notice is unclear and the applicant misses a deadline through no fault of their own.
Weight to benchmark salary sources: The Tribunal relied on SEEK, PayScale and Job Outlook. The admissibility and persuasive weight of various commercial salary surveys remain context-dependent; different tribunals or courts may assess comparative data differently.

Practitioners should therefore continue to present comprehensive financial and employment documentation, ensure strict compliance with procedural invitations, and treat RCB certification as an important but not conclusive component of the evidence to be marshalled on review.

Judgment (67 paragraphs)

[1]

Continental Foods Pty Ltd (Migration) [2024] AATA 95 (18 January 2024)

[2]

Continental Foods Pty Ltd (Migration) [2024] AATA 95 (18 January 2024)

[3]

REPRESENTATIVE: Mr Vikram Jeet Singh (MARN: 1572276)

[4]

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

[5]

MIGRATION - application for approval of nomination of position - direct entry nomination stream - restaurant manager - information provided after prescribed period - no entitlement to hearing - financial capacity to employ nominee - financial reports and tax returns - modest profits and ongoing employment - decision under review set aside

[6]

Migration Act 1958 (Cth), ss 359, 359C, 360(3), 363A

[7]

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

[8]

Hasran v MIAC [2010] FCAFC 40

[9]

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2020 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 4 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, 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)(d)(i) of the Regulations because the delegate was not convinced that the nominator had the financial capacity to employ the nominee.
On 11 August 2023 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide updated and current information about addressing the reg 5.19(2 and (4) criteria in writing.
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 25 August 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: The Tribunal has decided to proceed to decision without taking into account the information that was provided on 28 and 29 August 2023.

[10]

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.

[11]

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.
The Tribunal had regard to the documents on the Department's file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395; the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and the nomination application was paid.
The application identifies a need for the nominator to employ Mr Kapil Bhatia as a paid employee to work in the position of Restaurant Manager (ANZSCO 141111) under the applicant's direct control.
Accordingly, the requirement in reg 5.19(4)(a) is met.

[12]

Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

[13]

Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
ASIC records show the applicant is registered. The applicant declared it has traded as Café Canova and renamed to Sforno in October 2018. The Tribunal also had regard to the applicant's Financial Statements and tax returns for the 2022 and 2023 financial years.
The Tribunal gives weight to the information contained in the financial reports and income tax returns and is satisfied the applicant is actively, lawfully and directly operating its business, Sforno at Munno Para, in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.

[14]

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 is involved in labour hire activities. 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.

[15]

Term of employment of the visa holder: reg 5.19(4)(d)

[16]

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 delegate was not satisfied the applicant's financial position could sustain employment of the nominee for two years as provided by the employment contract.
The applicant's 2022 and 2023 financial reports and tax returns indicate modest profits for those years. The tribunal observes the nominee's payslips confirm his ongoing employment since, at least, 15 June 2020. The applicant's employment contracts with the nominee dated 26 February 2018 and 3 April 2023 do not expressly exclude the possibility of the extending the nominee's employment.
The Tribunal is satisfied the has the financial capacity to employ the nominee for at least two years and there is no express exclusion to the nominee's employment being extended.
Accordingly, the requirement in reg 5.19(4)(d) is met.

[17]

No less favourable terms and conditions of employment: reg 5.19(4)(e)

[18]

Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant declared it does not have an Australian employee in its workplace undertaking the same work as the nominated person. The applicant's organisation chart supports this. The applicant declared it would pay the nominee $65,000 per annum. The employment offer, subject to approval of the nominee's visa, includes minimum terms and conditions as provided by the National Employment Standards. The employment offer clarifies the nominee would be paid $65,000 exclusive of superannuation.
The applicant provided information it obtained from salary survey site SEEK. The Tribunal also had regard to the publicly available information on sites such as Payscale and Job Outlook. The remuneration offered by the applicant is at the higher end of the salary range of $48,000 to $66,000 indicated on PayScale. Job Outlook indicates the median salary for the position is $46,800 and SEEK advertisements offered salary in the range $50,000 to $79,000.
The Tribunal is satisfied on the evidence that the terms and conditions offered would be no less favourable than those offered to an Australian citizen or permanent resident employee.
Accordingly, the requirements of reg 5.19(4)(e) are met.

[19]

No adverse information known to Immigration: reg 5.19(4)(f)

[20]

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 that there is adverse information known to Immigration about the nominator or a person associated with the nominator.
Accordingly, the requirements of reg 5.19(4)(f) are met.

[21]

Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

[22]

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 of the applicant having anything other than a satisfactory record of compliance with workplace relations laws in Western Australia where it operates its business and employs staff.
Accordingly, the requirements of reg 5.19(4)(g) are met.

[23]

Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

[24]

Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.
Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) are as follows: 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.

[25]

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(16) provides that 'regional Australia' is defined by the legislative instrument.
The nominated position is for a restaurant manager to work at the applicant's restaurant located at Munno Para, South Australia. In this case, the position is located at the business premises in Munno Para, South Australia, 5115, and at the time of application, this location/postcode was considered regional Australia, as per Schedule 2 of IMMI 17/059.
Accordingly reg 5.19(4)(h)(ii)(A) and (E) are met.

[26]

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

[27]

The Tribunal noted the applicant placed employment advertisements with the Northern Messenger; The Advertiser; JORA and SEEK in February 2018. The applicant submits it shortlisted three applicants and Mr Kapil Bhatia was the successful candidate as he held the appropriate qualifications. The Tribunal attributes weight to the opinion of the RCB provided on 24 September 2018 that the position cannot be filled by an Australian citizen or Australian permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied the applicant has a genuine need to employ a paid restaurant manager under the director's direct control. The Tribunal is also satisfied the position cannot be filled by a locally resident Australian citizen or permanent resident.
Accordingly reg 5.19((h)(ii)(B) and (C) is met.

[28]

The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument. The occupation is required to be applicable to the nominee: reg 5.19(4)(h)(ii)(D) and (DA).
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Café or Restaurant Manager specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI 17/058. The application is for a Café or Restaurant Manager, ANZSCO 141111. The ANZSCO classification of occupations identify a skill level of 2 (AQF Associate Degree, Advanced Diploma or Diploma.
A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:

[29]

• Ensuring compliance with licensing , hygiene and health and safety legislation/guidelines

[30]

• Overseeing stock levels. Ordering supplies, Producing staff rosters

[31]

• Liaising with customers to assess their satisfaction with meals and service.

[32]

• Liaise with suppliers , licensing authorities , sales representatives, etc.

[33]

• Making improvements to the running of the business.

[34]

• Formulating and implementing policies and plans for advertising, public relations , sales and

[35]

• Initiate marketing strategies and coordinate actions to influence the market.

[36]

• Set sales targets and define a strategy to achieve these targets and to follow the set strategy

[37]

• Directing sales methods and arrangements by setting prices and credit arrangements.

[38]

• Manage product sales growth and individual sales effectiveness by reviewing sales activity

[39]

• Built pricing opportunities to encourage repeat sales.

[40]

• Understands the customer's need and to build & maintain excellent relationships with

[41]

• Pursue a long -term account strategy that maximized profits and assisted in cultivating long term

[42]

relationships with the appropriate decision makers.

[43]

• Planning and organise special functions, in-house or outdoor catering.

[44]

• Support marketing activities, website maintenance, handling queries, mailings etc.

[45]

The Tribunal received updated documents including an organisation chart and job description. The nominated position reports to the director and oversees 2 casual/part-time staff.
The position is applicable to the nominee's qualifications as the holder of a Diploma of Leadership and Management.
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Café or Restaurant Manager, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant's business correspond to the tasks of a Café or Restaurant Manager at ANZSCO 141111 Skill Level 2.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and (DA) of the Regulations are met.

[46]

Regulations 5.19.4(h)(ii)(F) requires that an authorised body has advised the Minister about matters in reg 5.19(4)(e), reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C) of the Regulations.
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme - Regional Certifying Body Advice, issued on 24 September 2018 by the South Australian Department of State Development, a body authorised by the Minister in IMMI 17/059.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme - Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in reg 5.19(4)(e ) and reg 5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
- There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
- 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; and
- 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.
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 Form 1404 provided, the Tribunal is satisfied that the requirements of reg 5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

[47]

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

[48]

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

[49]

5.19 Approval of nominated positions (employer nomination)

[50]

(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.

[51]

(4) The Minister must, in writing, approve a nomination if:

[52]

(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;

[53]

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

[54]

(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:

[55]

(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;

[56]

(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;

[57]

(AAA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

[58]

(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

[59]

(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

[60]

(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;

[61]

(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;

[62]

(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;

[63]

(DA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

[64]

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

[65]

(I) specified by the Minister in an instrument in writing for this sub-subparagraph; and

[66]

(II) located in the same State or Territory as the location of the position;

[67]

has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).