Advanced Catering Aust PTY LTD (Migration)

[2019] AATA 438

Advanced Catering Aust PTY LTD (Migration) [2019] AATA 438 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Advanced Catering Aust Pty Ltd

CASE NUMBER:  1719088

DIBP REFERENCE(S):  BCC2017/2334754

MEMBER:Cathrine Burnett-Wake

DATE:21 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 February 2019 at 2:59pm

CATCHWORDS
MIGRATION – Nomination – Direct Entry Nomination stream – marketing Specialist – ANZSCO 225113 – lack of supporting information – adverse information – previous five-year ban for failures of sponsorship obligations – associated company deregistered in 2011 – winding up proceeding terminated – compliance with sponsorship obligations – genuine need for position – Decision under review set aside

LEGISLATION

Corporations Act 2001 ss 50, 50AA

Migration Act 1958 (Cth), ss

Migration Regulations 1994 (Cth) Schedule 2 rr 5.19, 5.19(4)(a)(ii), 5.19(4)(d), 5.19(4)(e), 5.19(4)(h), 1.13A, 1.13B

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 Immigration on 9 August 2017 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).

2. The applicant applied for approval on 30 June 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream. The nomination was for the position of Marketing Specialist, ANZSCO 225113.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy numerous paragraphs within r.5.19(4) of the Regulations. The delegate made findings against r.5.19(4)(a)(ii), r.5.19(4)(d), r.5.19(4)(e) and r.5.19(4)(h) because no supporting information was provided with the application, so the delegate was unable to assess these subclauses.

5. Mr Alvin Yu, a Director of Advanced Catering Aust Pty Ltd, the applicant, appeared before the Tribunal on 24 August 2018 to give evidence and present arguments.

6. The applicant was represented by Migration Agent, Mr Richard Wu.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. It should be noted that the Tribunal has received a significant amount of evidence in support of the application, which was not available to the delegate of the Department of Immigration when they made their decision.

   BACKGROUND

10. By way of background, at hearing, Mr Yu told the Tribunal that ‘Advanced Catering’ started in 1998 and that the business is located in Epping, Victoria. He explained that the business provides catering services predominately to airlines, and they had contracts with Qantas, Thai Air, Air China, Etihad, Qatar and Air Vietnam. He also outlined that in addition to holding contracts with the various airlines they were also contracted suppliers to Crown Casino. The business supplies tray meals, packaging, hot kitchen meals, and cutlery packaging. Additionally, it was explained that for Crown Casino ‘we do lots for them’ such as catering for breakfast functions and pre-preparing fruit and vegetables so they don’t need to wash and sanitise prior to preparation, thus cutting down meal preparation time.

11. Mr Yu told the Tribunal that the business currently employs about 25 full-time and 10 part-time staff: eight people in the food section; seven in the packaging section; five people in the kitchen; twelve people on the cutlery packaging; along with another five making up administrative staff, drivers and cleaners.

12. Mr Yu explained that the reason he wished to employ a marketing specialist was that marketing was not his speciality, as he graduated in Applied Science and Hospitality Management. He explained his day-to-day job was overall management, including overseeing accounts, purchasing and looking after the contracts. He said that he had been a Director of the company since late 2014, taking over the management of the company from his father who was now semi-retired. He explained that he would like to employ a marketing specialist as he lacked expertise in this area and because he would like to expand the business. He explained that his expansion plans were to begin an exporting arm of the business, specifically exporting to Asia and the Middle East. He explained that his planned focus was with dairy goods, as he already had good buying power in that space. He additionally added that he believed the profit margins for the wholesale export of cheese, long life milk, waters and dried foods were very good. He said he would like to target supermarkets and hotels in the Middle East, and it was important that the business attended and exhibited at expos in the regions, which he did not have time to do. Mr Yu stated that the forecasting he had undertaken had demonstrated a lot of potential and that he expected an export arm to the business would add at least $1.5 million to $2 million to the company’s turnover per annum, and additionally would create at least another five to seven full-time jobs. Mr Yu said the thing that is holding him back from pursuing these new markets was his lack of time and expertise.

13. Mr Yu also told the Tribunal that in addition to adding an export arm to the business, he also wanted to expand locally too. He outlined that he had identified both the aged care industry and prisons as two other markets he would like to enter. However, as he lacked the expertise and time to facilitate all the work that would be required to target and enter two new  domestic markets and to create an export arm of the business, he decided to employ a marketing specialist.

14. Mr Yu told the Tribunal that he had interviewed quite a few people who had strong knowledge on how to expand the business and how to advertise in the markets he wished to target, however, they wanted to work on a non-exclusive commission basis and wanted between 5-7% of the value of any contracts the business may be awarded. Mr Yu said he was not prepared to do that and wanted a dedicated employee, not someone who wanted to work on commission only and may be undertaking work for others in direct competition.

15. Mr Yu told the Tribunal that he met the nominee on a trip to China, whilst she was working in Shanghai. He said when they met she impressed him with her marketing knowledge of how to organise marketing campaigns, liaise with potential customers and develop targeted advertising methods. He said he discussed with her his intentions with the business and she gave him numerous tips and ideas and many things to think about. He also outlined he was aware that she had many contacts overseas, which was very important to expand into the Asian market. He also commented that she was very fluent in both English and Chinese and that she was dedicated to her career in marketing. As such, he felt she was the perfect fit for the business.

16. Mr Yu also stated that the business has had no growth, and that he would like to expand and employ more people. He commented that he was proud of the fact that his business was 100% Australian and that it was able to contribute positively to the economy through employment of Australians and that he wanted to continue to do that, but to do that, he needed to employ the right person to help him expand.

    The application is compliant: r.5.19(4)(a)

17. 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) of the Migration Act 1958 (the Act). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

18. The identified occupation in the application is Marketing Specialist (ANZSCO 225113), with a base salary of $67,000.

19. The Tribunal notes that the delegate in their decision found that the nominator had not adequately demonstrated the need for a Marketing Specialist. As outlined at paragraph 4, no supporting information was provided with the primary application, as such the delegate made their findings based on what was written in the application form only. The Tribunal has had the benefit of supporting documentation, including a written submissions and having heard oral evidence from Mr Yu at hearing regarding the need for a Marketing Specialist. Mr Yu’s reasoning to employ a Marketing Specialist was logical and in line with the stated intentions to expand his business. Taking into account the written submissions to the Tribunal along with Mr Yu’s verbal evidence, the Tribunal has sufficient information before it to accept the nominator needs to employ a paid employee in the role of Marketing Specialist under the nominator’s direct control.

20. Accordingly, 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)

21. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

22. The Tribunal is satisfied on the basis of the material before it, including the business' registration documents, organisational chart, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.

23. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

24. 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.

25. Mr Yu provided evidence at hearing that the nominator does not participate in labour hire activities.

26. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

27. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

28. The Tribunal has had regard to the signed employment contract confirming the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.

29. The Tribunal has had regard to the documents provided on review, including the nominator's financial statements, tax returns and BAS.

30. The Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's salary and that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

31. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

32. 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.

33. The employment contract and primary application form indicates that the nominee's base salary is $67,000 plus superannuation. It was noted in the application form that there is no Australian performing equivalent work at the same location.

34. Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au, indicate that the base salary for a Marketing Specialist, depending on experience, is between $49,825 and $85,749. The Tribunal is satisfied on the basis of this information that the nominee's base salary is within the appropriate range of that normally paid to a Marketing Specialist in Melbourne.

35. The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

36. Accordingly the requirements of r.5.19(4)(e) are met.

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

37. 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 r.1.13A and r.1.13B of the Regulations. 

38. On 6 September 2018, the Tribunal obtained a Historical Company Extract for Advanced Catering Aust Pty Ltd and Advanced Catering Pty Ltd. According to the Historical Company Extract for Advanced Catering Pty Ltd, this company was deregistered under s.601AB of the Corporations Act 2001. At the time of deregistration on 23 January 2011, it is noted that Nai Yi Yu, date of birth 14 December 1956, was listed as a Director and 50% shareholder.

39. According to the Historical Company Extract for Advanced Catering Aust Pty Ltd, Nai Yi Yu, date of birth 14 December 1956, was listed as a Director from 29 June 2010 until 19 June 2012 and again from 27 October 2014 until 14 September 2015. In addition, Nai Yi Yu is a former shareholder of Advanced Catering Aust Pty Ltd. This information indicates that Advanced Catering Pty Ltd and Advanced Catering Aust Pty Ltd are ‘associated’ as per r.1.13B.

40. The Tribunal had information before it that Advanced Catering Pty Ltd received a five-year ban for failures of sponsorship obligations. Further, that Advanced Catering Pty Ltd lodged a merits review application with the then Migration Review Tribunal in regards to this ban. On 18 August 2010, the Tribunal varied the decision under review by reducing the ban period and barring the sponsor for a period of six-months.

41. Further, the Historical Company Extract for Advanced Catering Aust Pty Ltd indicates that winding up proceedings against the company have been undertaken, and that an external administrator and liquidator had been appointed.

42. The Tribunal wrote to the applicant pursuant to s.359A of the Act as it appeared Advanced Catering Aust Pty Ltd is subject to ‘adverse information’ as per r.1.13A because:

    • the company is associated with Advanced Catering Pty Ltd, which has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a department or regulatory authority that administers or enforces the law and;
    • Advanced Catering Aust Pty Ltd had winding up proceedings commence and is subject to administrative action (including being issued with a warning) for a possible contravention of such a law by a department or regulatory authority that administers or enforces the law.

43. The Tribunal in its letter specified to the applicant that if it relied on this information obtained, being the information contained within both the ASIC Company Extract for Advanced Catering Pty Ltd and Advanced Catering Aust Pty Ltd, along with the outcome of the former Migration Review Tribunal decision of 18 August 2010 to vary the decision under review by reducing the ban period and barring the sponsor for a period of six months, it may form the view that this information is adverse as per r.5.19(4)(f).

44. In response to the Tribunal’s s.359A letter, the representative provided submissions which stated in part, relevant to r.5.19(4)(f):

    Without offence, I doubt about the eligibility between Advanced Catering Aust Pty Ltd and Advanced Catering Pty Ltd being associated/related under r 1.13B, pursuant to s 50 and s 50AA of Corporations Act 2001, prescribing eligibility of being associated or related by ways of a holding company or a subsidiary company to control or have capacity to determine the outcome of decisions of second entity's financial and operating policies. As a matter of fact, there were/are no such managerial connection between Advanced Catering Pty Ltd and Advanced Catering Aust Pty Ltd.

    Moreover, Nai Yi Yu (former shareholder of Advanced Catering Pty Ltd) has ceased as a Director of Advanced Catering Aust Pty Ltd since 14/09/2015, hence, as of date of the lodgement of nomination application made to the department on 30/06/2016 Nai Yi Yu was no longer to have been associated with Advanced Catering Aust Pty Ltd - A person (the associated person) is associated with another person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity, r 1.13B states.

    As a result, without having been eligible to be associated/related each other, r 1.13A might have applied Advanced Catering Pty Ltd, having no implications against Advanced Catering Aust Pty Ltd.

    Despite it would be the case in this case, it's evident that, pursuant to r 5.19(4)(f)(ii) to reasonably disregard any adverse information known to Immigration about the nominator or a person associated with the nominator, given the circumstances that have been addressed in an AAT notice of decision on 18/08/2010 as paragraph (18) - having regard to the circumstances in which they occurred and their inadvertent nature, the review applicant’s inexperience in dealing with immigration and sponsorship matters, its high business standing and sound compliance record, and the review applicant’s prompt rectification of the identified errors, the Tribunal is of the view that a less severe sanction is appropriate, the minor breaches of immigration law occurred 8 years back could be forgiven.

    To weigh up substantial record of compliance over Australian laws since its inception in 2010 would be further significant to consider the eligibility to satisfy r 1.13A to satisfy r 5.19(4)(f).

45. The Tribunal notes that the representative has claimed the companies are not associated pursuant to s.50 and s.50AA of the Corporations Act 2001 as there was no managerial connection between Advanced Catering Pty Ltd and Advanced Catering Aust Pty Ltd. However, no information has been submitted to the Tribunal in support of this claim. The information before the Tribunal, being the Historical Company Extracts for both companies, reflects that Mr Nai Yi Yu was in the past a Director (office holder) for both companies, and in particular for both companies when, on 18 August 2010, the Tribunal varied the decision under review by reducing the ban period and barring the sponsor for a period of six months.

46. Under the Corporations Act 2001, Directors are subject to a number of duties, one of them being to govern a company on behalf of members or shareholders of that company which, essentially, is a managerial role. The Tribunal acknowledges that Advanced Catering Pty Ltd has ceased trading; however, it notes that just prior to it ceasing trading, Advanced Catering Aust Pty Ltd was formed, and Mr Nai Yi Yu was a Director of both companies (including as mentioned above when the Tribunal made a decision to vary the sponsorship bar), and continued to be a director of Advanced Catering Aust Pty Ltd after Advanced Catering Pty Ltd ceased trading.

1. The Tribunal notes the representative’s submissions that as Mr Nai Yi Yu ceased as a Director of Advanced Catering Aust Pty Ltd on 14 September 2015, which was prior to the date of the lodgement of nomination application made to the Department on 30 June 2016, and that Mr Nai Yi Yu was no longer associated with Advanced Catering Aust Pty Ltd. The Tribunal accepts that Mr Nai Yi Yu is no longer a Director of Advanced Catering Aust Pty Ltd. However, as detailed above, he was a Director of both Advanced Catering Pty Ltd and Advanced Catering Aust Pty Ltd on 18 August 2010, the date the Tribunal made its decision on the sponsorship bar, which forms part of the adverse information before the Tribunal. The regulations do not apply any time restrictions on adverse information pursuant to 1.13A, nor do they distinguish between historical and current association pursuant to 1.13B. As such, the Tribunal does not accept the representative’s submission that the association ended because Mr Nai Yi Yu ceased as a Director prior to this nomination application being lodged with the Department.

2. In the absence of any information to support the representative’s claim that the companies are not associated, the Tribunal will rely in the prima facie evidence before it, being the company extracts for both companies, which reflect that they had a common director (office holder). Additionally, the Tribunal notes that the details contained in the Tribunal decision about Advanced Catering Pty Ltd and its operations in comparison to Advanced Catering Aust Pty Ltd. They appear to be the same operations, albeit with a slight change of company name and the formation of a new company for the business functions to operate through. Additionally, at hearing Mr Yu have verbal evidence to the Tribunal that ‘Advanced Catering’ had been in operation since 1988, yet Advanced Catering Aust Pty Ltd was incorporated in 2010. This reasonably follows that it is the same business, although there has been a change of formal company structure.  Given this, the Tribunal is of the view that that there is an association between Advanced Catering Pty Ltd and Advanced Catering Aust Pty Ltd pursuant to r 1.13B, and the sponsorship bar which Advanced Catering Pty Ltd was subject to is adverse information pursuant to s.1.13A.

3. The question now before the Tribunal is whether it is reasonable to disregard the adverse information. It was submitted by the representative that the Tribunal should have regard to the findings made in the previous Tribunal decision. In particular where the previous member stated at paragraph 18:

   having regard to the circumstances in which they occurred and their inadvertent nature, the review applicant’s inexperience in dealing with immigration and sponsorship matters, its high business standing and sound compliance record, and the review applicant’s prompt rectification of the identified errors, the Tribunal is of the view that a less severe sanction is appropriate

4. The Tribunal is not bound by previous Tribunal decisions. However, based on the information before the Tribunal, because Advanced Catering Aust Pty Ltd has complied with sponsorship matters and because the issues relating to Advanced Catering Pty Ltd occurred over eight years ago, in this instance it would be reasonable to disregard the adverse information. 

5. In reference to the winding up proceedings, as reflected in the Historical Company Extract For Advanced Catering Aust Pty Ltd, the applicant provided evidence that the Supreme Court of Victoria issued an order on 22 June 2018 terminating winding up proceedings. Submissions from the applicant claim that a supplier of the applicant initiated winding up proceedings based on a dispute between parties; however, that dispute has been resolved though separate civil litigation.  The supporting documents supplied to the Tribunal support this claim. As such, the Tribunal is satisfied that the now terminated winding up proceedings do not constitute adverse information. The Tribunal is also satisfied based on the financial documents provided to the Tribunal, including a letter of support from the applicant’s accountant that the company is financially viable.

6. Accordingly the requirements of r.5.19(4)(f) are met.

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

7. 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.

8. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

9. Accordingly the requirements of r.5.19(4)(g) are met.

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

10. 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 legislative 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.

11. The Tribunal has reviewed the position description provided as part of the application. At hearing, Mr Yu also described the duties the nominated position would entail. Based on the position description that was provided, and Mr Yu’s verbal evidence, the Tribunal is satisfied that the duties of the nominated position correspond with those listed within the relevant instrument for the occupation of Marketing Specialist.

12. Evidence has been provided to the Tribunal of the company’s ability to meet training benchmark requirements. Receipts for the relevant period have been provided which demonstrates the applicant engaged an external training to cover training needs. Further, the receipts provided demonstrate that at least 1% of the payroll of the business has been spent on training.

13. Accordingly, the requirements of r.5.19(4)(h) are met.

14. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Cathrine Burnett-Wake
    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).