Air Voice Group PTY LTD (Migration)
[2023] AATA 2077
•3 July 2023
Air Voice Group PTY LTD (Migration) [2023] AATA 2077 (3 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Air Voice Group PTY LTD
REPRESENTATIVE: Mr Mark Glazbrook (MARN: 0100185)
CASE NUMBER: 1927745
HOME AFFAIRS REFERENCE(S): BCC2018/940737
MEMBER:Karen McNamara
DATE:3 July 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 03 July 2023 at 9:31am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – retail manager – genuine need to employ nominee and tasks of position – directors reliant on autonomous management of each store – comparison of tasks and ANZSCO description – location of position in regional area just outside metropolitan area – nominee transferred from metropolitan store – nominee’s qualifications, experience and employment history with applicant – comprehensive, consistent and credible evidence from director and nominee – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)(D)CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5
Vishvam Pty Ltd ATF Vishvam Unit Trust v MICMSMA [2021] FCCA 758
Harinsco Pty Ltd v MICMSMA [2021] FCCA 528STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 2019 to reject the application by Air Voice Group Pty Ltd (the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant operates numerous Vodafone dealerships predominately located in Western Australia, South Australia and New South Wales. In conjunction with a separate entity operated by the Directors (Air Voice International Group Pty Ltd) the entities are the largest independent Vodafone dealerships in Australia operating approximately 40 stores. Evidence before the Tribunal shows additional business interests distinct to the nominating entity, include IGA supermarkets and property development. ASIC records show the nominating entity was registered on 9 January 2014.
On 27 February 2018, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Retail Store Manager under the occupation of Retail Manager (General) (ANZSCO 142111). The nominated guaranteed annual earnings are $55,000. The application identified Mr Ajay Sharma.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
On 12 September 2019, the delegate refused the application on the basis the applicant’s nomination did not satisfy regulation 5.19(4)(h)(ii)(D) because the application did not demonstrate that the tasks to be performed in the position corresponded to the occupation of Retail Manager (General) (ANZSCO 142111).
The applicant lodged an application for review with the Tribunal on 2 October 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
On 11 May 2023, the applicant represented by Mr Jenish Shah (referred to below as the applicant) appeared before the Tribunal via Microsoft Teams Video, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ajay Sharma (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1930802).
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, 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 video. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
At the conclusion of the hearing, the Tribunal invited the applicant to provide further information addressing the recent relocation of the nominated position. Submissions were provided to the Tribunal on 20 May 2023.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it. This evidence includes the oral evidence received at the hearing, written statements and submissions to the Department and Tribunal including submission by the representative dated 20 May 2023.
At the hearing, the applicant told the Tribunal, the need to employ the nominee to work in the nominated position is critical to the operational and business needs of the business, to ensure the business’s ongoing financial viability and compliance with Vodafone dealership licencing conditions. The Directors are not involved in the daily management and operations of the respective stores and are reliant on the autonomous management of each store by designated store managers.
The Tribunal is satisfied on the information before it, that the application for approval identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control. Accordingly, the requirement in r. 5.19(4)(a)(ii) is met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal accepts on the evidence before it that the applicant owns and operates numerous Vodafone dealerships located throughout Australia. The Tribunal has considered material provided to the Tribunal, including bank statements, financial statements, information submitted to the ATO, ASIC details, supplier invoices, and internal store communication and is therefore satisfied, the applicant is actively and lawfully operating Vodafone stores in Australia and directly operates that business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
In considering whether the nominee will be employed in the nominated position for at least two years, the Tribunal has considered the financial capacity of the business to pay the nominated base salary of $55,000 (exclusive of superannuation) to the nominee for at least two years. In making its assessment, the Tribunal has afforded weight to information before it, including the applicant’s financial statements, BAS returns, bank statements, payroll summaries and nominee’s income statements, which show the applicant has continued to meet payroll and operating costs.
The Tribunal notes that the applicant’s financial statements show that the business over the last two financial years has reported sales revenue exceeding $8 million, recording proportionate net profit with substantial net equity and retained earnings. The Tribunal is satisfied that the submitted BAS returns and financial statements, indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.
The Tribunal has also afforded consideration to the evidence before it, supporting the nominee has been continuously employed in a full-time capacity by the applicant since April 2019. The nominee’s PAYG/Income statements and bank statements support the nominee has received regular remuneration exceeding the nominated salary amount.
Based on the evidence before it, the Tribunal is satisfied the applicant has demonstrated the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full-time basis for two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the nominee’s most recent contract of employment signed and dated by the parties 1 September 2022, which sets out the nominee’s terms and conditions of employment. The contract stipulates the salary is $65,000 per annum (exclusive of superannuation) with hours of work 38 hours per week. There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment contract dated 1 September 2022 and other material before it, including nominee’s acceptance of offer of employment (transfer) dated 19 May 2023, 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.
Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The employment contract dated 1 September 2022, sets out the terms and conditions of employment and indicate that the nominee’s salary will be $65,000 per annum and hours of work 38 hours per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards in the Fair Work Act 2009 and are covered by the General Retail Industry Award [MA000004].
The Tribunal has received copies of the nominee’s income statements and bank statements confirming that the nominee has received regular payment of remuneration from the applicant and employer superannuation contributions have been paid. The Tribunal is therefore satisfied based on the evidence, that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the 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.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
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 under the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
In this case the relevant criteria to be satisfied 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.
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position, are located in Mandurah, Western Australia postcode 6210, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Retail Manager under the occupation Retail Manager (General) (ANZSCO 142111).
The evidence before the Tribunal indicates the applicant operates over 40 Vodafone dealerships predominantly in Western Australia, South Australia and New South Wales. The applicant has provided oral and written submissions to the Tribunal detailing the genuine need for the position, in addition to position descriptions and job advertisements indicating the objective of the role and the contribution of the position to the applicant’s business.
At the hearing, the Tribunal discussed with the applicant the genuine need for the applicant to employ Mr Sharma as a paid employee to work in the position under the applicant’s direct control. The applicant told the Tribunal that the nominee has been employed with the applicant since 2016, commencing as a sales representative progressing to the position of store manager in February 2018.
Evidence before the Tribunal shows that the nominee was originally appointed to the store manager position located at Halls Head. Following the closure of the Halls Head store, the nominee transferred to the applicant’s Warwick store and following concerns raised by the Tribunal at the hearing, that this was not a regional location, the applicant transferred the nominee to the Mandurah store.
The Tribunal therefore has turned its mind as to whether there is a genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position located at Mandurah.
The Tribunal notes the applicant’s evidence pertaining to the challenges facing the business in retaining suitable and experienced managers and the applicant’s reliance upon Mr Sharma’s services and contribution to the development and ongoing viability of the business.
The Tribunal is satisfied on balance that the material and evidence provided by the applicant, including the applicant’s oral evidence, organisation chart, position description and submissions and supporting evidence pertaining to the transfer of staff between Warwick and Mandurah, collectively support there is a genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s operational requirements, its size and activities, the tasks to be undertaken in the position, the nominee's experience, qualifications and employment history with the applicant.
The Tribunal is satisfied on balance, that there is a business need for the position which supports the genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The Tribunal notes evidence before it showing the applicant advertised for store managers at Halls Head and Mandurah store locations (which are approximately seven kilometres apart and share the same postcode). At the hearing the applicant told the Tribunal that the business has been unsuccessful in sourcing experienced and qualified Australian citizens or Australian permanent residents to the numerous manager positions within the business as a whole and the challenges the applicant has faced in attracting and retaining staff to work in the Western Australian stores. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally.
On the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations. The delegate formed the view that the tasks to be performed in the position did not correspond to the tasks of a Retail Manager (General) as specified by the Minister in an instrument in writing for sub-subparagraph 5.19(4)(h)(ii)(D).
The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the tasks and duties of the position.
The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application. The Tribunal has additionally had the opportunity to discuss with the applicant and the nominee at the hearing, the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO. Both the applicant and nominee provided consistent and comprehensive details of the tasks associated with the position. The Tribunal considers the evidence provided by the applicant and nominee to be credible representation of the tasks reasonably associated with that of a Vodafone retail manager.
The applicant has provided evidence including the role of the Directors in the management of the business, a comprehensive submission detailing the nominee’s tasks and responsibilities, accompanied by work samples.
For nominations made on or after 1 July 2015, regulation 5.19(4)(h)(ii)(D) requires the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument.[1] This requires a qualitative analysis of whether the position is what it really purports to be in a practical sense, which is more than a line by line comparison of the tasks for example in the employment contract and the tasks of ANZSCO description.[2] It is a question of fact and the weight the decision maker gives to various considerations and evidence is a matter for it.[3]
[1] reg 5.19(4)(h)(ii)(D) as amended by SLI 2015, No 103.
[2] Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758 at [34]–[37]. The Court accepted that the qualitative analysis required for reg 2.72(10)(f) (whether the position associated with the nominated occupation is genuine) endorsed in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 was applicable to reg 5.19(4)(h)(ii)(D) assessment of whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument.
[3] In Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5, the Court found that it was open for the Tribunal to consider not only the documentary material but the oral evidence at hearing concerning the nominee’s role, and the Tribunal was not bound to treat the description in the contract as definitive but was open to take preference for one evidence over another (at [66]-[69]).
The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 142111 for the occupation Retail Manager (General) and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided comprehensive description of the daily duties and tasks carried out by the nominee and the reporting relationship of the position to the Directors, including autonomy as designated to the nominee by the Directors and the diversity of the Directors’ commercial portfolio.
In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has afforded consideration to the environment in which the business operates, the size of the business and operational requirements, the autonomy of the position in regard to decision making and how the tasks of a Retail Manager (General) (as undertaken in the nominated position) are relevant to meeting these requirements.
Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Retail Manager (General). Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
The occupation of Retail Manager (General) (ANZSCO 142111) is referred to in ANZSCO as a skill level 2 position. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. Department records show that the nominee holds relevant to the position an Advanced Diploma and Diploma in Leadership and Management attained from Stanley International College. The nominee has worked over six years in retail management with approximately five years in the nominated occupation.
Having considered the evidence attesting to the nominee’s experience and qualifications, the Tribunal is satisfied that he is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.
The Tribunal has before it, advice dated 21 March 2018, from the relevant RCB, Government of Western Australia Department of Training and Workforce Development indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).
Direct Entry nominations which are intended to support Subclass 187 visas must satisfy a number of specified criteria. For nominations made before 18 March 2018, reg 5.19(4)(h)(ii) includes the requirements that the position is located in ‘regional Australia’,[4] that there is a genuine need for the position and that the position cannot be filled by an Australian citizen or permanent resident living in the same local area. Additionally, a specified body located in the same State or Territory must have advised the Minister about certain criteria, including the genuine need for the position and inability to fill it with an Australian citizen or permanent resident.[5]
[4] For applications made before 18 March 2018, this requirement is contained in reg 5.19(4)(h)(ii)(A).
[5] For applications made before 18 March 2018, this requirement is contained in reg 5.19(4)(h)(ii)(F). For applications made on or after 18 March 2018, this requirement is contained in reg 5.19(12)(f).
As noted previously in this decision, at the time of application, the stated location of the where the person identified in the nomination would be employed, was Halls Head Western Australia post code 6210.
On 21 March 2018, Government of Western Australia Department of Training and Workforce Development, a regional certifying body (RCB) specified in IMMI 17/059 and located in the same State or Territory as the position’s original location and with responsibility for that local area, has advised the Minister about a number of matters relating to the position.
The certification noted the position is Retail Manager, the nominated person is Mr Ajay Sharma, and the nominated salary is $55,000.
Following concerns raised by the Tribunal during the hearing on 11 May 2023, the applicant provided post hearing submissions supporting the nominee had been transferred to the applicant’s Mandurah store. Whilst the Tribunal may form the view this transfer was to satisfy the requirement that the position is located in regional Australia and an attempt to retain the services of the nominee, the Tribunal has afforded consideration to Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2021] FCCA 528 (Harinsco), in which the Court found that the position the subject of the nomination application was geographically specific. The Court further found that the position the subject of the nomination application was, factually, geographically located at the location specified in the nomination application and not the location to which the applicant’s business had been relocated.
In the circumstances of this matter, the location of the position at the time of nomination and location at the time of this decision remain geographically located within the same post code 6210.
The regulations require that a body specified by the Minister in an instrument in writing and located in the same State or Territory as the location of the position has advised on certain matters relating to the nomination. As referred to above, the Government of Western Australia, Department of Training and Workforce Development, is specified in IMMI 17/059 as such a body.
The RCB certification dated 21 March 2018, stated that the RCB had assessed the nomination against the following requirements:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer; and
·The nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and
·The terms and conditions of employment that were applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location. (Emphasis added).
The above certification is made in relation to the nominated position of Retail Manager and does not specify the location of the position. The Tribunal notes at the time of application the location was specified at Halls Head post code 6210, which is within the same local area and geographical location as the present location of the position (Mandurah post code 6210).
On this basis, the Tribunal is satisfied that a body specified by the Minister in an instrument in writing and located in the same State or Territory as the location of the position has advised on certain matters relating to the nomination. Accordingly, and for the reasons noted above, the Tribunal finds that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i) all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
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