Ambergold Holdings Pty Ltd ATF Ambergold Unit Trust (Migration)

Ambergold Holdings Pty Ltd ATF Ambergold Unit Trust (Migration) [2021] AATA 3730 (13 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ambergold Holdings Pty Ltd ATF Ambergold Unit Trust
CASE NUMBER:  1811691
HOME AFFAIRS REFERENCE(S):          BCC2016/3054358
MEMBER:R. Skaros
DATE:13 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 September 2021 at 1:36pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Café or Restaurant Manager – it is reasonable to disregard the adverse information in this case – genuine need for the nominator to employ a paid employee – actively and lawfully operating a business in Australia –– no less favourable terms and conditions of employment – applicant is approved as a standard business sponsor– decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 2.79, 2.84, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 14 September 2016. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h) of the Regulations because the tasks of the nominated position do not correspond to the tasks of an occupation specified by the Minister in an instrument in writing. The delegate formed the view that the predominant tasks are not those of ANZSCO skill level 2 Café or Restaurant Manager, but are more closely aligned with the ANZSCO skill level 4 Retail Supervisor position.
On 21 August 2020 the Tribunal wrote to the applicant inviting them to provide updated and current information. A response was requested by 4 September 2020, however, it appeared that no response had been received by the Tribunal, and on 28 September 2020, the Tribunal made a decision to affirm the delegate’s decision not to approve the nomination for the position of Café or Restaurant Manager.
On 29 September 2020, the Tribunal received correspondence from the representative claiming that information had been provided to the Tribunal in response its letter of 21 August 2020. The representative attached supporting evidence, including an email dated 31 August 2020, to which material was attached, and the Tribunal’s acknowledgement of receipt. Further internal checks were conducted, and it was confirmed that the applicant’s email and supporting documentation had in fact been received by the Tribunal. Accordingly, the Tribunal found that the requested documents were received before the prescribed period had ended and a failure to take that information into account was plainly in error. Therefore, on 8 October 2020 the applicant was advised of the Tribunal’s intention to re-open the matter.
The applicant’s Director, Mr John Little, appeared before the Tribunal on 25 November 2020 to give evidence and present arguments.
Following the hearing, on 2 December 2020, the applicant provided the following documents:
·Relevant pages of the Trust Deed.
·Contract of employment dated 25 November 2020, signed by the applicant and nominee.
- Payslips and 187 visa grant notice for employee (Barry Donnan) as evidence that the nominee’s earning’s will be equivalent to that of an Australian working in the same position at the same location.
·Information to demonstrate that the applicant is making efforts to employ Australians in its business (Fibber McGee’s) including, a signed letter from the applicant’s Director regarding Management Recruitment and a letter dated 30 November 2020 from Mr Andy Tan of Australian Professional Skills regarding the skills shortage in the WA hospitality sector.
During the processing of the review, the Tribunal became aware of allegations about the applicant that was received by the Department in October and November 2019. The Tribunal contacted the Department to obtain further information and was advised that monitoring of the applicant, who is an approved standard business sponsor, had commenced. The Tribunal considered it appropriate to delay the making of its decision until the monitoring process had been finalised.
On 19 August 2021 the Department decided to bar the applicant for a period of 3 months from sponsoring more people under the terms of their current approval as a standard business sponsor.
On 20 August 2021, the Tribunal wrote to the applicant requesting information, including recent financial reports, current contract of employment for the nominee, information regarding the market salary and submissions addressing the requirements of reg 5.19(4)(f) regarding the Adverse information received from the Department.
On 1 September 2021, the Tribunal received a response which included the following:
·Profit and loss statement for 2021 financial year and a signed letter from the applicant’s accountant attesting to the applicant’s capacity to pay the market salary rate of $62,000 plus superannuation for at least the next 2 financial years.
·The nominee’s recent payslips.
·Updated and signed contract of employment dated 22 August 2021
·Market rate salary information including SEEK job advertisements for the position of Restaurant Manager in Perth with salary range 55,000-65,000 AUD and PayScale extract showing that the average restaurant manager salary in Perth is $56,981.
·A submission from the applicant requesting the Tribunal to disregard the Adverse information.
The applicant was represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
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 a paid employee to work in the position under their direct control.
Based on material in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee, which in this case was nil. The Tribunal is also satisfied that the applicant certified, on the application form, that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Act.
In the application, the applicant identified Mr Aaron Browne as the person they wish to employ in the position of Restaurant Manager (ANZSCO: Café or Restaurant Manager). The position, which is a paid one, is in the applicant’s business (Fibber McGee’s). The nature of the position, the tasks of the position and whether there is a genuine need for the position in the applicant’s business are matters discussed in more detail below. Suffice it to say that, for the purposes of r.5.19(4)(a)(ii), the Tribunal is satisfied that the application identifies a need for the nominator to employ a paid employee to work in the position under the their direct control.
Given the above, the Tribunal finds that requirements in reg 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 applicant operates the business Fibber McGee’s, a licensed Irish pub and restaurant located in Leederville WA. The business was established in 1998. The Tribunal has before it a large volume of material regarding the operations of the business, current business registration, activity statements, financial reports, organisational chart, payslips for various employees, photographs of the business premises, including of its outdoor beer garden and function room. The Tribunal also had the opportunity to take evidence from Mr Little about the operations of the business. On the totality of the evidence before it, the Tribunal is satisfied that the applicant (Ambergold Holdings Pty Ltd ATF Ambergold Unit Trust) directly operates a pub and restaurant business in Australia
Given the above, the Tribunal finds that the requirements in reg 5.19(4)(b) are 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.
The nominator’s business activities do not involve the hiring of labour to an unrelated business. Accordingly, the requirement in reg 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.
The Tribunal has had regard to the contract of employment dated 22 August 2021 signed by the nominator and nominee, which sets out the terms and conditions of the nominee’s employment. The contract indicates that the position of ‘Bar Manager’ is permanent, full time (38 hours per week) and there is nothing in the terms of the contract which expressly excludes the possibility of an extension.
The Tribunal has also had regard to the nominator’s financial circumstances, to the fact that the nominee has been employed in the position for the last 5 years and to the letter from the nominator’s accountant attesting to the nominator’s financial capacity to provide the stated employment. The financial statements for the most recent financial year indicate that the applicant operates a highly profitable business and the Tribunal is satisfied the applicant has the financial capacity to employ the nominee.
Given the above, the Tribunal is satisfied that the nominee will 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. Accordingly, the requirement in Reg 5.19(4)(d) is 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 sets out the terms and conditions of employment and indicates that the nominee’s annual base salary will be $62,000 plus superannuation.
The Tribunal has had regard to the documents for Mr Barry Donnan who was granted a permanent residence, Subclass 187, visa and used to work for the nominator as a ‘Bar Manager’, as a position which was also approved by the Department. The payslip indicates that Mr Doonan’s weekly wage is $1036,54 which is equivalent to an annual base salary of $53,900.
The applicant has also recently provided market rate salary data indicating that the position of Restaurant Manager in Perth attracts a salary of between $55,000 and $65,000. The additional current information was provided because, as indicated by Mr Little in his most recent correspondence to the Tribunal, there are no equivalent workers currently employed by the applicant.
The Tribunal has considered all the evidence before it, including the market salary adate and the wages paid to Mr Doonan, who until recently appears to have worked for the nominator in an equivalent position. On the totality of the evidence, the Tribunal is satisfied that the terms and condition applicable to the position will be no less favourable than those that would be provided to a permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirements of Reg 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.
Information before the Tribunal indicates that a decision was taken by the Department on 19 August 2021 to bar the applicant for a period of three months from sponsoring more people under the current approval as a standard business sponsor. While the terms of the bar only precludes the applicant from sponsoring more people under their current sponsorship approval, being for temporary skills shortage positions, the information is nevertheless considered ‘Adverse information’ as defined in r.1.13A, as the applicant is the subject of an administrative action by the Department for contravention of the law, being their failure to comply with the sponsorship obligations in r.2.79 and r.2.84.
In considering whether it is reasonable to disregard the sponsorship obligations, the Tribunal has had regard to the submission made by Mr Little in his most recent letter to the Tribunal in which he states the following:
Ambergold confirm they were subject to monitoring and received a bar from sponsoring more people from 19 August 2021 to 19 November 2021.
TheInspector, Sponsor Monitoring Unit, advised:
'I have noted your response to the NOITTA, and the other evidence gathered during monitoring and consider that a contributing factor for the underpayments were a result of misunderstandings of the relevant Hospitality Industry Award requirements. It is however acknowledged that you committed and evidenced immediate remedies to rectify the underpayments, and undertook to make changes to your record keeping to prevent a reoccurrence.'
and
'However in assessing the penalty as a result of this investigation, considerable weight has been given to the sponsors contrition, and efforts immediately implemented to rectify the identified breaches. The penalty reflects the positive actions and cooperation of the sponsor.'
Ambergold request that the Tribunal Member consider it reasonable to disregard the ‘adverse information’ due to Ambergold immediately rectifying the identified breaches and undertaking corrective action to simplify the record keeping relating to salaries.
This may be identified with regard to the Nominee through the attached contract of employment and payslip where Ambergold now include meal allowances and holiday pay accruals more visibly on payslips.
The Tribunal has considered the above submissions and supporting documentation and is satisfied that the nominator’s breach was not intentional and that they have made a concerted effort to immediately rectify the failures identified by the Department during the monitoring process. Having regard to the circumstances, the Tribunal is satisfied that it is reasonable to disregard the adverse information in this case. The requirement in r.5.19(4)(f)(ii) is therefore met. Accordingly, the requirements of reg 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.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii), which requires that the following is satisfied: 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. The Tribunal has considered each of these requirements as follows.
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant, and the position are located in Leederville, WA 6007, which is a postcode specified in the applicable instrument as being in regional Australia. Accordingly, r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal has next considered whether there is a genuine need for the applicant to employ a paid employee to work in the position under their direct control. The position in this case has been noted as ‘Restaurant Manager’ in the nomination application. In the employment contract the position is referred to as ‘Bar Manager’, and throughout the hearing Mr Little referred to the position as ‘Approved Manager’. Notwithstanding the position title, the applicant has maintained that the position is one which comes within the classification of the occupation of Café or Restaurant Manager (141111). At the hearing Mr Little gave evidence that the nominee has been employed in the nominator’s business for about 5 years, with the most recent position being that of an ‘Approved Manager’. The Tribunal is satisfied that the position is a genuine vacancy within the nominator’s business, however, the Tribunal initially had some concerns about whether the position can genuinely be described as that of a Café or Restaurant Manager.
In considering the nature of the position and the tasks to be performed in the position, and whether they correspond with the tasks of the occupation of Café and Restaurant Manager, which is specified in the relevant instrument, the Tribunal has had regard to the information set out in ANZSCO (Australia and New Zealand Standard Classification of Occupations) for that occupation:
UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS

CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Indicative Skill Level:
…
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·planning menus in consultation with Chefs
·planning and organising special functions
·arranging the purchasing and pricing of goods according to budget
·maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders

Occupation:
141111 Cafe or Restaurant Manager

141111 CAFE OR RESTAURANT MANAGER

Alternative Titles:
Food and Beverage Manager
Restaurateur

At the hearing, the Tribunal queried Mr Little about the nominated position and the day to day tasks currently being performed by the nominee. In his evidence, Mr Little explained that the pub, which operates a bar and restaurant required an ‘Approved Manager’, of which the nominee is one, to be onsite at all times. He gave evidence that the business has an annual turnover of about $3 million, 45% of which is derived from the business’ restaurant operations. He stated that on each shift the Approved Manager (also referred to as the Bar/Restaurant Manager) is responsible for every aspect of the business, including the operations of the bar and restaurant. He stated that the nominee is responsible for rostering and managing staff who work in the bar and the restaurant, liaising with the head chef regarding the menu, stocktake with head chef, identifying food and beverage shortages, ordering stock and reviewing costings. Mr Little stated that as a licensed tavern/restaurant, the tasks carried out by the nominee in the position were not simple and involved carrying out higher level managerial duties in consultation with the head chef and was answerable to the General Manager. Mr Little gave evidence that the same position had previously been approved by the Department as a Café and Restaurant Manager.
In written submissions to the Tribunal, the applicant’s representative referred the Tribunal to s.100 of the Liquor Control Act (WA) and relevant policy regarding managers at licensed premises and licensee’s duties. Relevantly, it requires that there is always a person in a position of authority at the premises who is capable of managing and supervising the conduct of business and exercising authority over the activities that occur at the premises.
It was submitted that the nominee is present at all times during his duty shift and carries all the responsibility for ‘managing and supervising the conduct of business and exercising authority over the activities that occur at the premises’. Furthermore, it was noted that the nominee holds an unrestricted managers approval, evidence of which was attached, as an ‘Approved Manger’ as required by the Liquor Control Act having completed the Australian Hotels Association Management of a Licensed Premises (Approved Manager) course in October 2014.
In providing further details about the tasks of the position, it was submitted that the ‘Approved Manager’ is in charge of the venue during their shift which includes undertaking, among other duties, the following:
·liaising with the Head Chef regarding daily specials and seasonal menu variations.
·discussing stocktake and cost of sales with the Head Chef.
·liaising with the Head Chef regarding the hiring of kitchen staff.
·Weekly meetings regarding previous week’s kitchen performance, including any food complaints.
It was also submitted that the position involves planning, marketing, and overseeing special functions and parties, including for birthdays, christenings, Christmas, fundraising dinners, engagement parties and weddings. It was noted that Fibber McGee’s has a special function room upstairs which holds 40 seated patrons for dinner, and a beer garden at the back of the premises which is used for drinks and nibbles type functions. Photographs of the function room and beer garden, as well as website information promoting the function services were provided to the Tribunal. Also provided was email correspondence between the nominee and patrons discussing details of various functions to be organised. As an example of the types of functions the nominee has organised, the representative provided evidence which showed that the nominee had organised a special function ‘Teeling Whiskey Dinner’ for which the nominee had arranged the provision of, and negotiated the pricing of, special whiskeys from the supplier, planned the menu with Head Chef, planned and executed the marketing of the dinner (via facebook, flyers, posters at the venue) and managed the event on the night.
It was also noted that the position involved responsibility for pricing goods against a budget. With specific reference to cost control of bar, it was noted that nominee is required to ensure all deliveries are checked in correctly and that all relevant delivery dockets/invoices are correct, communicate stock shortages or anomalies to the General Manager, minimise any incorrect usage of resources, regularly price check all beverage items bought to ensure that items are being purchased at the best prices available. It was noted that the tasks of inventory, stocktake and ordering comprised of less than 5% of the tasks performed by the nominee. It was also submitted that as the Manager on duty, the nominee is responsible for ensuring compliance with health regulations, ensuring customer service is to the highest standard to maintain the business’ clientele and overall success of the business.
Having carefully considered all the evidence before it, particularly Mr Little’s oral evidence and the sample emails and examples of the tasks carried out by the nominee in the position, the Tribunal is satisfied that the position involves organising and controlling the operations of the applicant’s bar and restaurant business (Fibber McGee’s). Having considered Fibber McGee’s drinks and food menus, the Tribunal is satisfied that the business is not just a drinking establishment but that it also operates a viable and popular restaurant which serves authentic Irish dishes.
Given the above, the Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Café and Restaurant Manager under the nominator’s control. The Tribunal is also satisfied that the tasks of the position largely correspond to the occupation of Café and Restaurant Manager, which is a skill level 2 occupation, as specified in the ANZSCO. There are no applicability conditions identified in the relevant instrument with respect to this occupation.
Given the above, the Tribunal finds that the requirements of Regs 5.19(4)(h)(ii)(B), (D) and (DA) are satsified.
The Tribunal has had regard to the letter from Mr Little and his oral evidence regarding the efforts made by the applicant to employ someone locally. It has also had regard to the letter from Mr Andy Tan of Australian Professional Skills indicating a skills shortage in the hospitality sector in WA. The Tribunal is satisfied that the material and evidence provided supports the applicant’s submission that they have made efforts to fill the position locally but have had considerable difficulty doing so. On the evidence, the Tribunal is satisfied that the position cannot be filled locally by an Australian citizen/permanent resident. Therefore, the requirements of reg 5.19(4)(h)(ii)(C) are met.
The Tribunal has received the completed form 1404 dated 7 October 2016 from the relevant RCB, Government of Western Australia (Skilled Migration WA), indicating that they are satisfied regarding the matters specified in paragraph (e) and subparagraphs (B) and (C). On this basis, the Tribunal is satisfied 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.
Conclusion
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.
R. Skaros
Senior 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).

[2021] AATA 3730

13 September 2021

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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