1824634 (Migration)

[2021] AATA 2310

1824634 (Migration) [2021] AATA 2310 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824634

MEMBER:Karen McNamara

DATE:24 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 24 June 2021 at 5:55pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – direct entry nomination stream – genuine need for position and financial capacity to employ nominee for two years – current financial information shows company operating at loss – COVID-19 restrictions and downturn – nominee left employment almost three years ago – adverse information – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 359(2), 359AA, 376
Migration Regulations 1994, r 5.19(4)(d), (f)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 August 2018, to reject the application by [name] (the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 26 May 2016. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. Information before the Tribunal shows that the delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations, because the applicant failed to demonstrate that the business had the financial capacity to sustain the nominee’s full-time employment for at least two years.

5. The applicant applied to the Tribunal on 24 August 2018 for review of the delegate’s decision.

   Information provided to the Tribunal

6. On the 25 February 2021, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in rr. 5.19(2) & (3) of the Regulations were met.

7. On the 11 March 2021, the applicant submitted the following to the Tribunal;

   ·Applicant’s statement 9 March 2021

   ·Migration Agent’s submission dated 10 March 2021

   ·ABN Lookup

   • ASIC Extract
   • Business Name Extract
   • Current & Historical Extract
   • Company tax returns financial years 2018 & 2019
   • Financial Statements financial years 2016, 2017, 2018 & 2019
   • Profit & Loss MYOB Document FY 2018
   • Business Activity Statements July 2017-June 2020
   • Payroll Summary financial years 2018, 2019 & 2020
   • Accountant letters dated 26 May 2016 and 10 March 2021
   • Organisation Chart May 2016
   • Organisation Chart May 2018
   • Organisation Chart March 2021
   • Duty Statement for Office Manager
   • Detailed duty statement for Office Manager
   • Letter of engagement signed and dated [in] June 2016
   • Employment Contract [March] 2021
   • Letter re: RSMS application (undated)
   • Submission to Department dated 25 May 2016
   • Nominator Certification Form
   • Nominee Declaration Form
   • RCB Advice dated 30 May 2016
   • Copy of Advertisement - Seek
   • Market rate - Payscale
   • Nominee’s payslips
   • Nominee PAYG Summary 2017
   • Nominee Tax Return financial years 2017, 2018 & 2019
   • Nominee [qualification]
   • Confirmation of Enrolment -secondary 187 visa applicant
   • Nominee’s child’s Medical Receipts & Prescriptions

8. On 22 April 2021, the Tribunal invited the applicant and nominee to appear before the Tribunal to give evidence and present arguments. The invitation requested the applicant and nominee to provide the following information at least seven days prior to the hearing scheduled for 1 June 2021.

   ·    Evidence to support the current financial position of the applicant including full set of       financial statements for 2019/20 financial year prepared and certified by a CPA.

   ·    BAS returns as submitted via ATO portal post July 2020.

9. On 1 June 2021, the applicant represented by [Mr A] (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from [name] (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1828845). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.

11. The applicant and nominee were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

12. At the conclusion of the hearing the Tribunal invited the applicant to provide financial information attesting to the current financial position of the business.

13. On 4 June 2021, the applicant provided to the Tribunal a letter from their accountant dated 3 June 2021, financial statements 2019/20 financial year, Company tax return 2020 financial year and BAS returns July 2019 to June 2020.

14. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

    Non-Disclosure Certificate (s.376 of the Act) – Invitation to comment

15. At the hearing the Tribunal told the applicant that a non-disclosure certificate has been issued pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department’s case file.

16. The Department has sought to restrict the disclosure of information on the Department’s file. The reason stated for non-disclosure is that to disclose the information would be contrary to public interest because it may disclose or enable a person to ascertain the existence or identity of, a confidential source of information.  

17. The Tribunal considers that the s.376 certificate is valid and provided the applicant with particulars of the information to enable him to comment on the validity of the certificate and whether the information should be released.

18. The applicant advised that it was difficult for him to respond as he was not aware of what the information related to and requested that the information be released. The Tribunal advised the applicant that it would not release the information covered by the certificate because some of the information did not relate to the applicant or the matter currently before the Tribunal and that the Tribunal considered that the certificate was valid.

19. The Tribunal advised the applicant that it would proceed under s.359AA of the Act to disclose to the applicant the information considered adverse relating to the matter currently before the Tribunal and afford him opportunity to respond.

    ADVERSE INFORMATION – Invitation to comment

20. In accordance with s.359AA of the Act, the Tribunal put to the applicant information before the Tribunal that suggests there is adverse information known to the Department about the applicant. The Tribunal explained that under s.359AA of the Act, the Tribunal is required to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comment or response, be the reason, or part of the reason, for affirming that decision under review.

21. The Tribunal told the applicant particulars of the information that being [in] March 2018, the Department received allegations alleging that a named individual was facilitating payment for visa’s in the [applicant’s region]. In regard to the nominating business, the allegations allege that; ‘[business name and address] is doing fake sponsorship. Owner [Mr A] is getting money for this even employee not working there. They got $[amount] from employee. Employees paying tax + super and leftover money from his pockets……’ 

22. The Tribunal confirmed with the applicant that the Tribunal must be satisfied under r.5.19 (4) (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.

23. The Tribunal told the applicant that this information is relevant, because it suggests that there is adverse information known to Immigration about the nominator or a person associated with the nominator and that at the time of the hearing there was no information currently before the Tribunal to suggest it is reasonable to disregard this adverse information. If the Tribunal relies on this information, it may not be satisfied the applicant meets the requirements of r.5.19 (4) (f) and as such the Tribunal may then find that the applicant does not meet the requirements for approval of the application and the decision under review may be affirmed.

24. The Tribunal invited the applicant to comment on this information. The applicant chose to respond orally and told Tribunal that he is aware of the person the allegations refer to and that whilst this person approached him, he did not engage in this conduct. The applicant engaged the nominee as an employee because he wished to employ the nominee. The applicant told the Tribunal that he has never been contacted by the Department in regard to these allegations.

25. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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. For the nomination to be approved, all the requirements must be met.

    Background

27. The applicant operates a [service] business located [in] Queensland. The applicant told the Tribunal that he established the business in [year], sold it in [year] then repurchased the business in [year]. The applicant also operates a [product] business ([named]) supplying [specified products], which has operated since [year]. ASIC records show that the nominating entity was registered [in specified year].

28. On 26 May 2016, the applicant lodged an application for an employer nomination approval for the position of Workshop/Office Manager in the occupation of Office Manager (ANZSCO 512111) under the Regional Sponsored Migration Direct Entry stream. The nomination was lodged in favour of [the nominee]. The nominated base rate and guaranteed annual earnings is $43,000.

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

29. 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. 

30. At the hearing the Tribunal discussed with the applicant, the capacity of the business to employ the nominee on a full-time basis in the position for at least two years. The Tribunal noted that the most recent financial statements before the Tribunal were for the 2018/19 financial year. The Tribunal discussed with the applicant the current financial position of the business in which the applicant stated that they were in a better position than the ‘last time’     (time of nomination application) and the July 2020 to December 2020 sales should be above that of the previous comparative period. The applicant noted with changes to job keeper and job seeker payments, people were not spending as much and therefore expected to start seeing a decline in sales.

31. The Tribunal discussed with the applicant that in the absence of contemporary financial evidence, according to the applicant’s 2018/19 comparative financial statements, the business recorded excess of liabilities over assets/negative net equity of ($27,197), net loss of ($12,255) and an accumulated loss of ($27,199). Having consideration to the reported losses and that the nominee left the employment of the applicant in September 2018, the Tribunal asked the applicant how the business could afford the nominated salary of $43,000.

32. The applicant told the Tribunal that the business has increased, but to date is starting to decline again. The applicant if able to do what he anticipates in so far as promoting and securing more business, is confident that he can generate income to cover the salary and more.

33. The Tribunal noted that the delegate in their decision had concerns in regard to the business’s financial capacity to pay the nominated salary and that the Tribunal based on the current financial information before it, also shared these concerns. The applicant did not dispute this however from his point of view finds himself in a catch 22 situation where in order to generate more income he needs to get out and source work.   

34. Post hearing the applicant provided to the Tribunal copies of the business 2019/20 financial statements, company tax return and BAS returns July 2019 to June 2020.

35. According to the applicant’s 2019/20 comparative financial statements, the business recorded excess of liabilities over assets/ negative net equity of ($28,719), net loss of ($1,521) and accumulated loss of ($28,721). The company tax return for the 2020 financial year records an accumulated tax loss of ($105,946).

36. The Tribunal is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision. In assessing the applicant’s capacity to employ the nominee full time in the position for at least 2 years, the Tribunal has taken into consideration the most recent financial evidence provided by the applicant to the Tribunal including financial statements, tax returns, BAS returns, employment contract and the nominated  salary amount.

37. The Tribunal has also considered the letter dated 3 June 2021 provided by the applicant’s accountant. The accountant states in the letter;

    ‘ The company recorded losses of $10,786 (2018), $12,255 (2019) and $1,521 (2020) which included the following expenses:

    1. Director's salaries of $66,560 (2018), $62,720 (2019) and $66,560 (2020).

    2. Depreciation, a non-cash expense of $21,895 (2018), $22,023 (2019) and

    $27,079 (2020).

    The losses recorded were less than the depreciation claimed so were not actual cash losses. The business generated profits before depreciation and owner's remuneration of

    $77,669 (2018), $72,488 (2019) and $92,118 (2020).

    The company is a going concern, and we anticipate the company will be able to sustain the nominee, [named] for two years and meet all of its' financial obligations.[1]’

    [1] Transcribed as prepared and submitted by the accountant

38. The letter supports the information recorded in the applicant’s financial statements and states in reference to the recorded losses ‘ The losses recorded were less than the depreciation claimed so were not actual cash losses. The business generated profits before depreciation and owner's remuneration of $77,669 (2018), $72,488 (2019) and $92,118 (2020).

39. In having consideration as to the circumstances as purported by the accountant to the recording of the said losses, the Tribunal notes that if consideration was afforded to  considering profit before depreciation, the depreciation amount reported in the 2020 financial year was $27,990, which is still below the nominated salary amount of $43,000 and as such a shortfall still exists. Further there is no compelling evidence before the Tribunal to support or even suggest that the owner will forgo remuneration to increase the business’s profitability. For these reasons the Tribunal provides little weighting to the accountant’s comments and has afforded consideration to the financial position of the applicant based on the entirety of the financial statements and tax return provided.

40. Evidence before the Tribunal shows that the nominee left the employment of the applicant in September 2018. The Tribunal notes that the nominated salary is guaranteed annual earnings of $43,000 and the contract of employment dated [in] March 2021, stipulates the salary will be $55,000 per annum plus superannuation. There is no evidence before the Tribunal to support that the applicant has incurred additional payroll or salary expense to cover the nominee’s absence from the position during the 2018/19 and 2019/20 financial years.

41. The Tribunal notes that the nominee according to his 2018/19 tax return received gross payments from the applicant of $10,668. There is no verifiable or compelling evidence before the Tribunal to support how the applicant would have met an additional salary expense in 2018/19 financial year of $32,332, when the business recorded a net loss of ($12,255) and accumulated loss of ($27,199) and in the 2020 financial year an additional salary expense of $43,000 when the business recorded a net loss of ($1,521) and accumulated loss of ($28,721).

42. The Tribunal has considered the oral evidence provided by the applicant that if afforded the opportunity to be able to get out and promote the business, he has the capacity to generate income to cover the nominee’s salary. However, there is no persuasive evidence before the Tribunal including marketing/promotional plans and strategies and financial sales forecasting, to demonstrate potential income and how the applicant will achieve and guarantee higher sales income. The Tribunal therefore provides little weighting on the applicant’s claims.

43. Having overall consideration of the evidence before it, the Tribunal is of the view that there is lack of evidence that the Tribunal considers concrete and persuasive, to support how the applicant will meet the nominated salary of $43,000 per annum for at least two years.

44. On the information before it and the reasons noted above, the Tribunal finds, it is not satisfied that applicant has demonstrated the financial capacity to pay the full-time salary for the nominated position for at least two years. Accordingly, the Tribunal has formed the view that the applicant has not demonstrated that the nominee will be employed as required for the minimum period of two years on a full-time basis as specified in the Regulation. The Tribunal therefore finds the applicant does not satisfy the requirement in r.5.19(4)(d)(i).

45. Accordingly, the requirements in r.5.19(4)(d) are not met.

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

46. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

1. The Tribunal accepts that the relevant criteria to be satisfied in the present matter, are those set out in the second limb, that is under r.5.19 (4)(h)(ii) where all subclauses r.5.19(4)(h)(ii)(A) to r.5.19(4)(h)(ii)(F) must be met.

2. The Tribunal discussed with the applicant its concern as to the genuine need for the position, given evidence before the Tribunal shows that the nominee left the applicant’s employment in September 2018.

3. The applicant addressed the Tribunal’s concern at the hearing by telling the Tribunal that over the last 14 years the position was undertaken by two former employees who unfortunately for the applicant, stole from the business. The nominee proved to be a reliable and trustworthy employee who the applicant described as a “good young bloke.” The applicant requires the position to enable him to source new sales opportunities and generate additional income for the business. The applicant also operates a [product] business which requires his time. Pre COVID travel restrictions, the applicant regularly travelled [overseas] as part of the [product] business and requires the Workshop/Office Manager to manage the [service] business in his absence.

4. The applicant told the Tribunal that the nominee decided to leave his employ after receiving notification form the Department that his visa application had been rejected. At the time the nominee was a mess and was not in a good state and wanted to return to Melbourne where he had a support network. The applicant thought that there was nothing further that could be done in so far as disputing the Department’s decision and thought there was no point in continuing to train the nominee and just thought that the nominee had to go.

5. The nominee later advised the applicant that he was able to revisit the Department’s decision and there was a possibility the decision could be reversed, to which the applicant told the nominee that he would “hang on to it (the position) and see if you can get back”.

6. The Tribunal asked the applicant to comment on how the business has managed for almost three years without the nominee. The applicant told the Tribunal that it has not been helpful to the business and difficult in so far as, the applicant is covering the position which is preventing him from getting out and sourcing new business. While people were receiving job keeper and job seeker payments business was going well, however since job keeper finished and changes were made to job seeker, business has slowed down. Due to business slowing down, the applicant stressed he needed to get out of the office and source new opportunities for sales by promoting the business.

7. The applicant wishes to move forward with the business and requires the nominee to return to the position. The applicant advised the Tribunal that he has not readvertised the position since the initial advertisement in May/June 2016 because he gave the nominee his word that the job would be available for him pending the outcome of the appeal. When asked by the Tribunal if the applicant at any time asked the nominee to return to the position, the applicant stated that he didn’t due to the uncertainty of the situation, however if the nominee is successful in obtaining a visa, he will return to [the region].

8. In providing evidence before the Tribunal, the nominee told the Tribunal that he applied for the position on the suggestion of a friend who advised that [the applicant’s region] offered more opportunities than Melbourne for employment. After receiving advice from the Department that his visa application had been rejected, the nominee said that he was totally broken and after a month decided to return to Melbourne as it was a painful time in his life. The nominee is currently living in Melbourne with his wife and child and is currently [undertaking different employment].

9. Whilst the Tribunal is sympathetic to the applicant and nominee’s circumstances including the applicant keeping his promise that he has kept the position available for the nominee, the Tribunal as explained to the applicant and nominee at the hearing, is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision and must apply the relevant Migration law.

10. Whilst the Tribunal acknowledges the evidence before it in regard to the personal circumstances of the nominee which has contributed to him no longer working in the nominated position, the Tribunal considers that the personal circumstances of the nominee are not germane to the question of whether there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The issue under consideration by the Tribunal is whether the evidence before it, supports there is a genuine need for the nominator to employ a paid employee to work in the position of Office Manager.

11. In undertaking this assessment, the Tribunal has considered the term “genuine need”. The Tribunal notes that the Macquarie Dictionary Online defines the word “Genuine” to mean – ‘being truly such; real; authentic; properly so called; sincere; free from pretence or affection’. It also variously defines “Need” to mean ‘some necessity or want exists; a condition marked by the lack of something requisite; to be in need or want.’

12. The Tribunal has considered the evidence provided by the applicant as to the steps undertaken during the period of time the position has remained vacant, to provide the tasks of the nominated position and to recruit a suitably qualified person for the role. Accordingly, given the evidence before it, the Tribunal observes the following factors detract from the applicant’s claims that he has a ‘genuine need’ to employ a paid employee to work in the position of Workshop/Office Manager at the business premises in [region].

13. At the time of this decision the applicant has not provided persuasive and corroborative evidence to substantiate how the actual duties and responsibilities of the nominated position have been fulfilled other than the applicant has been unable to concentrate on other aspects of the business including promoting the business and sourcing more work opportunities.  There is no persuasive and corroborating evidence to support that the business has suffered adversely due to the absence of a dedicated Workshop/Office Manager.

14. The Tribunal is of the view that an approximately three year period, is a substantial period of time for the position to remain vacant and for the duties and responsibilities of the position not to be carried out by a dedicated incumbent. The Tribunal notes the reason provided by the applicant for the position remaining vacant in so far as the applicant has promised the nominee that he can return to the position.

15. Whilst the Tribunal acknowledges the applicant’s reasons for not readvertising the position, this suggests to the Tribunal that the applicant has made no serious attempt to test the labour market and find someone suitable to fill the position. Instead the applicant has chosen to leave the position open for almost three years in order for the nominee to recommence once he obtains a subclass 187 visa. As such, this suggests to the Tribunal that there is not a demonstrated necessity by the applicant to fill the position and as such the applicant has not demonstrated there is a genuine need for the nominator to employ a paid person to work in the position under the nominator’s direct control.

16. The Tribunal has considered the evidence before it, and does not consider the evidence before it sufficient to support a finding that the applicant has demonstrated that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, particularly given that the applicant has chosen to leave the position vacant for almost three years pending the nominee’s granting of a subclass 187 visa. Instead of readvertising the position, the applicant has chosen to undertake responsibility for the position. There is no corroborating evidence to suggest that the business has suffered as a result. The Tribunal therefore finds the applicant does not satisfy the requirements of r.5.19(4)(h)(ii) (B).

17. Accordingly, the requirements of r.5.19(4)(h) are not met.

18. As the Tribunal has found the applicant does not meet r.5.19(4)(D) and r.5.19(4) (h) it is not required to consider the rest of the requirements as set out in r.5.19(4).

19. For the above reasons 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

20. The Tribunal affirms the decision under review to refuse the nomination.

    Karen McNamara
    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 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;

    (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 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).

    
    

[2] Macquarie Dictionary online (accessed 21 June 2021).