1501570 (Migration)

1501570 (Migration) [2016] AATA 3483 (10 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  WAISIM KITCHEN PTY LTD
CASE NUMBER:  1501570
DIBP REFERENCE(S):  BCC2014/1520933
MEMBER:David Dobell
DATE:10 March 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination
Statement made on 10 March 2016 at 1:29pm

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 Immigration on 13 January 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 20 June 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream. The delegate refused the nomination on the basis that the applicant company’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations.
Ms Mei Kuen Choo (hereafter ‘the applicant’), sole director and shareholder of the applicant company Waisim Kitchen Pty Ltd appeared before the Tribunal on 12 February 2016 to give evidence and present arguments. Her husband, Wai Kit Sim, is the nominee for the position.
The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review by its registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CLAIMS AND EVIDENCE
The following relevant documentary evidence was on the Department file:
- Submission, representative
- Birth certificate
- BAS April to June 2014
- Photo of club restaurant
- Staff list- 2 kitchen hand/waitress, 1 waitress, 1 chef and proposed restaurant manager
- Menu for Chinese restaurant, and photo of restaurant
- ABN 19 June 2012
- TFN advice 21 June 2012
- Contract of employment- 19 June 2014, 3 years position, no probation, $55,000 plus super, no grounds termination at any time
- ANZ statement, company account, June- August 2014 starting balance $60,000
- Ken Nelson & Associates Accountants, Ken Cho, 10 June 2014, started 1 April 2014 and has turnover of $34,666 and wages of $16,333
- Payscale information for restaurant manager, $50,640 pa average salary
- Catering Agreement, Narromine Bowling Club and applicant company, 17 May 2014
- Statement of Business Plan and Training Commitment, undated
- BAS, company, 1 October 2014, stating total sales of $49,632
- Nomination application- direct entry - $55,000 plus super ($60,088), 4 Australians only
The Department’s decision record was provided to the Tribunal. The delegate found that:
· There was no genuine need for a full time café or restaurant manager given the size of the organisation, reporting lines and business activity
· The position is more closely aligned to retail supervisor or sales assistant, which are not positions that can be nominated under the relevant instrument
· Therefore r.5.19(4)(a)(ii) is not met and the nomination is not approved
On the Tribunal file prior to hearing was the following:
- Narromine Bowling Club, 10 February 2016, letter of support, signed by the Secretary, President and Manager, regarding a full scale restaurant service
- BAS, October-December 2015, July-September 2015 - $23,000 salaries for quarter
- Photo of restaurant
At the hearing, the applicant said that she and her husband are on bridging visa Es with no permission to work. Their sole source of income is from the restaurant operated by the company. They both live in Narromine where the restaurant is located.
The restaurant started on 1 April 2014 and operates out of the bowling club. There was no business operating before that date. They have a contract with the club.
As to employees, she said there is the chef, who is full-time, 38 hours a week. There are 3 other casual employees, who do the waitressing and kitchen hand duties. She referred to Rebecca and Gaby, working 20 hours a week, and Katherine working 30 hours a week. There is one more, Carly, who is due to start soon.
There is no cafe or restaurant manager there at present. She and her husband are not allowed to work and do not assist in any capacity at the restaurant. As to what they do, she said they look after their 3 young children together at home.
The restaurant opening hours are 12-3 pm, and 5-8.30pm, but they are closed all day on Mondays and for lunch on Tuesdays.
The Tribunal asked how the chef could only work 38 hours a week given the opening hours and she said they close early sometimes. She also said he may work more if they have a special party on but it is usually 38 hours.
As to the ratio of take-away to eat-in, she promptly said it was 40% roughly. As to how she knew this, she said the chef reports this to her.
As to how many people frequent the restaurant, she said there would usually be around 10-20 at lunchtime and 20-30 at dinnertime. This varies especially at night-time, if there are parties on.
As to gross takings per week, she said it was $4,500- $4,800 approximately. She said it started off slower but they got to this figure within about 6 months of opening.
The Tribunal asked under which Award her employees are being paid. She said she didn’t know and her accountant was handling this. The Tribunal said that as the employer she should know these things as she would be responsible if they were not paid properly.
The Tribunal then turned to the paragraphs of r.5.19 of concern.
It noted in respect of (b) that it did not have the 2014/15 financial statements as a minimum to show the company’s operations. These are to be provided.
In relation to (d) and (e), it raised three issues of concern:
•there is insufficient evidence for the Tribunal to be satisfied that the Company can afford to pay $55,000 pa salary for 2 years
•there is a ‘no grounds’ termination provision in the employment contract, which is not a guarantee of at least 2 years employment
•the catering contract also has a ‘no grounds’ termination provision- and the contract could end with just 1 months notice
The applicant said that their income since starting has been gradually increasing and they have a good relationship with the club, and deal mainly with the Manager, James Coen.
The Tribunal also noted that there was a provision which could require the restaurant to report to the club about sales, and asked whether this provision had been used. She was not sure, but said that chef or Katherine would do this. She would find out.
In respect of (e), the Tribunal also noted that the employment contract did not refer to the NES. Apart from that, it said that a salary of $55,000 pa for a cafe or restaurant manager was reasonable in the circumstances.
As to (g), the Tribunal referred to the business Statement on the Department file which said that they employed 3 fulltime Australians and paid them all $1,500 a week. The Tribunal said from this it was concerned that minimum wages were not being paid. Hence there was a concern in relation to workplace relations practice.
The applicant said that Katherine did the pays, and paid in cash and did give payslips. She would be leaving soon. The Tribunal said it would need to see PAYG Summaries for each employee for 2014/15, and also a selection of payslips over time for each employee.
As to (h)(ii) the Tribunal noted that the applicant did not appear to be pursuing the regional pathway to satisfying this provision, but it may need to assess this.
As to (h)(i)(A) and genuine need for a cafe or restaurant manager, the Tribunal noted that as there is not one there presently and it has been running since April 2014 without one, and given the low number of patrons, it said it may be the case that there was not a genuine need for this position.
The applicant said that yes, there was a need, and they need a manager to greet customers, and provide table service, and organise parties, and to do introductions and promotions, and to train new staff, and to maintain the quality of the food and kitchen hygiene.
The Tribunal said that it would have thought the last two were the chef’s responsibility. She said that he has his own duties such as monitoring goods coming in and out.
The Tribunal then suggested that perhaps a part-time cafe or restaurant manager was only required and not a full-time one. She said they need a full-time manager and to arrange catering for parties.
The Tribunal then noted that whilst cafe or restaurant manager was on the ‘government list’, fast food/take away was excluded. She said they are not fast food. The Tribunal said it accepted this but that she had said it was 40% takeaway. It may well be more than 40% and perhaps documentary evidence is required to satisfy the Tribunal that it is just 40%.
The Tribunal then turned to (h)(i)(B) and training expenses and she said it is their plan to spend $1,500. The Tribunal noted that this was now an established business and it would expect there to have been training expenses in the year 2014/15. She said there was no time. The Tribunal said that if there was no evidence of training in that year at least, it was not likely to find she met the training requirements.
In light of the information required the Tribunal gave the applicant 3 weeks to provide additional evidence.
After the hearing, the representative provided the following documentary evidence:
·PAYG payment summary statement, 2014/15 and:
oPAYG Summary, JT 14/15, $3,900
oPAYG Summary, KT, 14/15 $5,200
oPAYG Summary, MKC (applicant), 14/15, $20,000
oPAYG Summary RK, 14/15, $15,600
oPAYG Summary CS (cook), 14/15, $23,250
·Ken Nelson & Associates, Accountants, Ken Cho, 3 March 2016, advising that given the current sales figures, in their opinion the company is ‘in solid progress of improving financial status’ and will have sufficient ability to meet the requirements of employer nomination
·Narromine Bowling Club, Manager, James Coen, 4 March 2016, advising clause 13.1 has not been invoked but that from his observations, it would be 60% seated customers compared to around 40% take away
·Company interim financial statements, for year ended 31 January 2016
·2/2 to 14/2/16 ‘Payslips’, for KE, KY and RR, and other payslips over time of business (No record of tax or superannuation paid on this)
·Catering Agreement, 26 February 2016, between Narromine Bowling Club and applicant company
·Contract of Employment, for nominee, 3 March 2016, signed by the parties
·Sydney Institute TAFE, receipt, applicant company, $3,000, for benchmark A contribution, 4 March 2016
The representative also advised that the company’s employees were paid under the NSW Hospitality Award, and that evidence was given at hearing that the employees were unable to allocate time to undergo subsidised training. The representative said an auditable plan was given for 2014-15 and 2015-16 became the second year, for which it seeks that the Tribunal accept the TAFE benchmark A contribution receipt to be satisfactory training evidence.
The Tribunal notes that there is a Hospitality Industry (General) Award 2010, which applied to relevant employees from 1 January 2010, which is a Commonwealth Award, not State.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision record. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)(i) and r.5.19(2)
Regulation 5.19(4)(a)(i) requires that the application for approval must comply with r.5.19(2), which requires that the application for approval be in the approved form and must be accompanied by the prescribed fee. The Tribunal is satisfied that this is the case here.
The application is compliant: r.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 Tribunal is satisfied this provision is met as the Department issued an acknowledgement of nomination application received and noted the application was being processed.
The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. The delegate determined that the applicant did not meet this requirement, as there was no ‘genuine need’ for the nominated position of full time café or restaurant manager.
The Tribunal notes Department policy on this requirement, which states in part:
13.2    Need for a paid employee
The assessment of the 'need for a paid employee' comprises 2 parts:
•    establishing the need for an employee (that is, there is a genuine vacancy for the nominated position) and
•    ascertaining that the relationship between the nominator and the nominee is that of employer and employee.
The Tribunal considers that this provision is a procedural requirement only. It merely requires that the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, which the company has clearly done in the application.
In support of such an interpretation is the wording of the similar requirement in relation to regional matters. However, this states clearly that there must be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B).
This provision clearly states that genuine need must be established in relation to regional matters. However there is no such requirement in relation to non-regional matters, such as this.
If r.5.19(4)(a)(ii) was concerned with establishing a genuine need, and applies to both regional and non-regional nominations, then r.5.19(4)(h)(ii)(B) would have no work to do in relation to regional matters.
The Tribunal is prepared to follow Departmental policy, but only where it is consistent with the law. In this case, the Tribunal does not consider the policy is consistent with the wording of the requirement in r.5.19(4)(a)(ii).
However, the Tribunal considers that this may properly addressed at r.5.19(4)(h)(i)(A), which relevantly states that:
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
The Tribunal needs to be satisfied that the tasks of the position, whatever it may be titled as, will, firstly, be performed here, thus being a test of genuineness, and second, that they correspond to an ANZSCO occupation listed in the relevant instrument. This will require the Tribunal to determine what the relevant occupation classification is here, given the tasks of the position.
In any event, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The Tribunal is satisfied from the oral and financial documentary evidence before it that this is the case.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.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.
Accordingly, the requirement in r.5.19(4)(c) does not apply here.
Term of employment of the visa holder: r.5.19(4)(d)
From examining the latest contract of employment dated 3 March 2016 signed by both parties, the Tribunal is satisfied that the applicant company agrees to the nominated person being employed in the nominated position for at least 2 years full time ( being 3 years in this case), and that the terms and conditions of employment do not expressly exclude the possibility of an extension.
The Tribunal was first concerned that the offer of employment was not properly for a three year period as the original contract stated that it could be terminated at any time. The Tribunal notes that the new Contact of Employment allows no grounds termination only after the expiration of the 3 year initial term. Thus this concern has now been met.
Another concern raised at hearing was that the company’s agreement with the club for the restaurant was not a lease as such, and could also be terminated at any time, meaning employment was not secure.
The applicant has provided a new catering agreement, which, while stating that it is still not a lease, is for a period of 5 years and can be terminated at any time only for neglect to carry out the terms and conditions of the agreement. In light of this, the Tribunal will accept that this concern has been met.
A further concern, raised at hearing, was that from the financial evidence provided to the Tribunal, it may not be satisfied that the company will be able to afford to pay the nominated salary of $55,000 pa for the required 2 year minimum.
The applicant has provided the Tribunal with further financial documentary evidence. The PAYG Payment Summary for 2014/15, being the first full year of operation, shows total wages of $67,950.
Looking at the individual PAYG Summaries, this shows $3,900, $5,200 and $15,600 (for the three waitresses/kitchenhands), $20,000 in drawings for the applicant and $23,250 for Chor Ho Siu, who is the cook, totalling $67,950. Payslips over time have been provided for the three waitresses /kitchenhands, but not for the cook.
The Tribunal notes that recent BAS have not been provided so as to give the most recent salaries and gross sales figures.
Proper company financial statements for the 2014/15 financial year are not before the Tribunal but an interim financial statement for the year ending 31 January 2016 has been provided. This contains a Statement of comprehensive income, which shows salaries as $29,725 for the 7 month period. Using the above as a 7/12^th pro rata amount, converting to a full year estimate, salaries would be approximately $51,000 for 2015/16.
The applicant has also provided advice from the company accountant. He states that total sales of the company was $202,029 in 2014/15 with a net profit of $2,134 in that financial year (the Tribunal again notes it does not have the financial statements before it). He states trading results so far this year are $136,667 in total sales with a net profit of $38,728. Converting this 7/12^th sales figure to a full year estimate gives approximately $234,000 total sales, which the Tribunal will accept as accurate.

The accountant gives the opinion that the company can afford to employ the nominated person and notes its ‘improving financial status’ in coming to this opinion.
The Tribunal’s concerns are as follows.
The applicant has provided payslips for the waitressing/kitchen hand staff but has not provided individual payslips for the cook. At the hearing she stated the cook works 38 hours a week usually, but perhaps more sometimes. However, from the PAYG Summary, there is no suggestion they were not employed for the full year and their 2014/15 salary was only $23,250, which equates to $11.77 an hour.
The national minimum wage is now $17.29 an hour or $656.90 a week, giving $34,158 pa (See National Minimum Wage Order 2015). Given the 2014/15 PAYG Summary for the cook, the Tribunal finds that the cook has not been paid at the correct rate and hence any salary estimate for 2015/16 will be understated.
Accepting as found above that sales might rise to $234,000 for 2015/16, converting the other figures in the interim financial statement would leave a gross profit of $132,000, and expenses incurred of approximately $66,000, including salaries, giving a profit of approximately $66,000.
Whilst the Tribunal will accept the gross profit estimate of $132,000 it does not accept the salary estimate, and hence the total expense estimate, are accurate estimates.
As to a breakdown of the likely salary figure for 2015/16, the Tribunal accepts it would be significantly greater than the 2014/15 figures, given the increase in business in that time.
Using the ‘payslip’ information provided for the three waitresses/kitchenhands from 2016, two worked 12 hours a week each at $17.50 p.h. and the other worked 28 hours at the same rate. This is roughly consistent with the applicant’s oral evidence as to their work hours. She referred to ‘Rebecca and Gaby’, working 20 hours a week, and ‘Katherine’ working 30 hours a week.
The Tribunal therefore estimates that wages would be approximately $47,000 for the three waitresses/kitchenhands- around $11,000 each for two and around $25,000 for the other.
Added to the $47,000 would be the minimum wage of $34,158 for the cook. This is a total of over $81,000, and assumes no drawings by the applicant for this year.
So, with total salaries of over $81,000, plus an estimated figure of $14,600 for light/power and vehicle for the full year, that gives total expenses of $95,600, which would leave an estimated profit of only $36,400 when subtracted from the gross profit estimate of $132,000 for the 2015/16 year.
The business then has to pay the nominee the nominated $55,000 pa plus superannuation ($66,088), which would lead it to operate at a loss. From the interim financial statements provided the company does not at this time have any cash reserves as assets to ensure that the $55,000 salary is paid for the required two years. The Tribunal notes that the company ANZ bank account had around $60,000 in it in mid-2014 but it cannot be satisfied that the money still remains in the account as of now. Despite the applicant’s claims the Tribunal is also not satisfied that total sales would increase to such a degree over the next two years to ensure that the salary for the nominated position could be paid.
Thus the Tribunal is not satisfied on the financial evidence before it that the company can afford to pay the nominee the nominated salary for a two year period. Whilst it notes the accountant’s opinion on this, it does not have the actual company financial statements for 2014/15 or current BAS referred to by the accountant before it, and having considered the likely wages/ salaries of the business and noting the underpayment of the cook, given the minimum wage, it does not give the accountant’s opinion any weight in this regard.
The Tribunal is therefore not satisfied regarding the applicant’s ability to pay the nominee the agreed salary for at least 2 years and the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4)(d) is met.
Whilst not necessary, the Tribunal also considered rr.5.19(4)(h)(i)(A) & (B).
After considering the oral evidence of the applicant, whilst it was satisfied that the business would be considered more a restaurant than a take-away, and that the position would be more one of manager than a supervisor or sales assistant, the Tribunal was not satisfied that a full time café or restaurant manager was required.
The Tribunal considered that the business had been operating from April 2014 without the benefit of a manager yet sales had increased since that time, and the business has apparently operated smoothly without one. The applicant told the Tribunal neither she nor or husband have had anything to do with the business in that time.
Further, whilst the Tribunal can accept the claims that the manager is required, to greet customers, and provide table service, and organise parties, and to do introductions and promotions, and to train new staff, and perhaps in conjunction with the cook, to maintain the quality of the food and kitchen hygiene, the Tribunal does not consider that such a position is necessary for 38 hours a week where 3 waitresses/kitchenhands are also employed and who, by necessity, must already do some or many of the above duties.
Thus the Tribunal is not satisfied that the tasks to be performed in the position, being a fulltime café or restaurant manager 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, under r.5.19(4)(h)(i)(A).
In terms of training, in the company’s Statement of Business Plan and Training Commitment, being its ‘auditable statement’ under r.5.19(4)(h)(i)(B)(II) given the business had not been operating for 12 months at the time of nomination, the company undertook to spend about $1,500 each year on training, or 1% of payroll. However, at the hearing, when asked what training the company had undertaken, the applicant said they did not have time to do this.
Thus the applicant has undertaken in writing to the Department to provide training but she has not gone ahead with it, and, in the Tribunal’s view, her reason is not a good one. This indicates to the Tribunal that she had not put her mind to this, and, that, for nearly two years after the business had begun she undertook no staff training, and, once alerted to this issue at hearing, she has paid $3,000 into a TAFE Benchmark A fund and is asking the Tribunal to accept this.
At this time, the Tribunal is satisfied that the nominator’s business has operated for at least 12 months, and hence r.5.19(4)(h)(i)(B)(I) applies, and the nominator must meet the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing. The relevant extracts from the instrument, IMMI 13/030, are as follows:
The business is not required to demonstrate that they are an industry leader in training.
The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.
The training benchmarks for an established business are:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of
the business, in payments allocated to an industry training fund that operates in the same
industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of
the business, in the provision of training to employees of the business.
Even though the applicant has now paid $3,000 into a TAFE Benchmark A account, based on her poor past record, the Tribunal cannot be satisfied that training has been, and will continue to be, provided to employees who are Australian citizens and Australian permanent residents related to the purpose of the business.
Thus the Tribunal is not satisfied that, given the nominator’s business has operated for at least 12 months, 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 under r.5.19(4)(h)(i)(B)(I).
For the above reason the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
David Dobell
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
r.5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)    directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     both 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;
(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 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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2016] AATA 3483

10 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction