ANNILAX ENTERPRISES PTY LTD (Migration)

ANNILAX ENTERPRISES PTY LTD (Migration) [2020] AATA 205 (31 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ANNILAX ENTERPRISES PTY LTD
CASE NUMBER:  1816287
DIBP REFERENCE(S):  BCC2017/2921936
MEMBER:Mr S Norman
DATE:31 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 January 2020 at 9:48am
CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – employment for at least two years – financial capacity – annual wage expenditure for current full-time and part-time employees – closure of one restaurant – plans for expansion of business – employer’s multiple applications to department and tribunal – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 May 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations). The Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 15 August 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).
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 r.5.19(4)(d) of the Regulations.
The applicant (represented by its Director, Mr Anand GOPINATH) appeared before the Tribunal on 23 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the associated visa applicant (Mr Iqbal Singh). The applicant was represented in relation to the review by its registered migration agent.
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 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.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The 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.
The applicant/nominator (Annilax Enterprises P/L. T/A Namaste Indian Cuisine) lodged a nomination application under the Direct Entry Stream on 15 August 2017; the nominated occupation was for a Cook (ANZSCO: 141111); the visa applicant was Mr Iqbal Singh; the base rate of pay was $54,500. The position was based in Goulburn.
Based on the evidence before it, the Tribunal accepts the nomination application was made on the approved form, and accompanied by the fee prescribed in r.5.37; that it contained a written certification stating whether the nominator had engaged in conduct in relation to the nomination that contravenes s. 245AR(1); that it identified a visa applicant; that it identified an occupation in relation to the position that is listed in ANZSCO and has the same 6 digit code as the occupation carried out; and that it identified a need for the nominator to employ the 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) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
With the Department and the Tribunal, the applicant lodged a Certificate of Registration on Change of Name[1]; ASIC extracts (current and historical); and other evidence of business activity.
[1] PDF- p.31 (PDF refers to the merged Department file on the Tribunal’s CASEMATE database).
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal has no evidence the nominator’s business activities include those relating to labour hire to an unrelated business.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.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 their decision, the delegate noted the applicant claimed to run an Indian Restaurant chain, the business consisting of six (now five) restaurants located at Campbelltown (ceased in May 2018/9), Jindabyne, Young, Cooma, Camden and Goulburn in NSW. In the application it had also been claimed the business employed 19 Australian/Permanent Residents and 28 foreign employees. The delegate also noted this nomination was one of (then) 17 Direct Entry nomination applications lodged by the applicant. As a result, information provided for each application was considered both individually and holistically in order to determine both need and financial capacity of the applicant’s business to support the additional staff.
A Department letter of 11 April 2018,[2] had raised concerns regarding inconsistency between the wages declared in the Financial Statements for the period 1 July 2016 to 30 June 2017; and also the number of staff employed in the business as per information on the organisational chart lodged on 8 November 2017. The letter also said (in part):
Dividing the annual wage expenditure of $658,359 between the [then] 13 full-time employees, gives an average annual earnings of $50,643 per staff member. I note this figure is lower than the majority of proposed annual wages the business intends to pay the nominated positions … I also note that this does not take into account the wages of the additional 34 part-time staff members that the business purported to employ during that time.
In addition, based on the organisational charts submitted, of the 17 pending nominations 12 nominees are already working in the business part-time. Therefore, the business is also proposing to support these persons in a full-time capacity, along with an additional five full-time positions.
As it does not appear that the business currently has the financial capacity to support its current declared workforce, it is put to you, the nominator, that you do not have the ability to support the additional guaranteed annual earning of $54,500 for a period of two years as required by regulation 5.19(4)(d).
Therefore regulation 5.19(4)(d) may not be met.
[2] PDF – p.549.
On 9 May 2018, responses to the above invitation to comment were received. Amongst other things, the following was lodged:
·     submission letter from the business and company Director, Mr Gopinath, dated 7 May 2018
·     accountant letter dated 16 April 2018
·     updated organisation charts for the business Head Office and the Campbelltown, Jindabyne, Young, Camden, Cooma and Goulburn branches[3]
·     PAYG payment summaries for five former employees
·     resignation letters for seven former employees
·     Financial Statements for the period ended 30 June 2016 (Profit from Ordinary Activities before Income tax - $20,066.32).[4]
·     Interim Financial Statements for the period 1 July 2016 – 31 March 2017 (Profit from Ordinary Activities before income tax 79,757.39[5])
·     Interim Financial Statements for the period 1 July 2017 to 31 December 2017
·     Activity statements
[3] PDF – from p.76.
[4] PDF- p.10.
[5] PDF – p.88.
On 17 May 2018, further documents were lodged:
· selection of documents titled “evidence of directors experience in hospitality industry”
· documents titled “evidence of ownership of property of Young Branch”
After then considering the evidence, the delegate noted the letter of 7 May 2017 from Mr Gopinath (hereafter the Director), regarding the seven resigned employees, notes that of the seven only two were included in the organisation charts provided on 8 November 2017 and considered as part of the wages calculation in the procedural fairness letter:
· Kamalpreet Singh, full-time Chef – Camden Branch (annual salary $54,500 per PAYG payment summary provided)
· Cheand Sukhchain Juara, full-time Cook – Campbelltown Branch (annual salary $40,875 per PAYG payment summary provided)
Given the inconsistencies with the organisation charts lodged, the delegate gave little weight to the Director’s statement the salaries that were being paid to the former employees that have left the organisation will now be used to pay the new employees who will be replacing them. The delegate continued that if taken at face value, the resignation of seven employees had only freed up capacity to employ another seven full-time staff. This did not support the wage cost of the then 17 pending nominations or the then 34 part-time staff shown on the detailed organisation charts lodged.
The Director also said there was potential for more employees to leave the business during the time it may take the Department to process the current nomination applications on hand, freeing up more wages to pay the nominees once their visa was granted. However, the Department remained concerned the business was then unable to pay its current on hand workforce as well support the additional wages of the nominees. Therefore, little weight was given to this submission.
The delegate acknowledged the provision of a presale correspondence from ‘Laliotis Lawyers’ regarding the contract for sale of land at 67 Lynch Street in Young. However, this was not an actual contract of sale. Further, this property, claimed to be an asset of the business, did not appear on the balance sheet in the interim Financial Statements for the period 1 July 2017 to 31 December 2015. Therefore, little weight was placed on this evidence.
Next the Director said “we are ready to invest $200,000 in the next 24 months, with a milestone based further injection of $500,000”, but the delegate was not satisfied this was supported by any corroborating evidence. Therefore, the delegate gave little weight to this claim. Further, the delegate was not satisfied the projected cash flow information and table provided referring to future predicted sales, accurately reflected the businesses current financial position or its ability to support its current workforce. At hearing, the Director advised the money was subject to the sale of the abovementioned Young property and that had not been sold at this time.
Next, the Director referred to the contingency plan to support the additional wages of the nominees. This included the equity in the Director’s own home, personal bank account and the Young restaurant. However, no evidence supporting these statements regarding personal equity were said to have been lodged and therefore little weight was placed on same. When discussed at hearing, the applicant said he had not invested any of his own personal equity in the business at this time.
The delegate also considered the updated organisation charts provided. The business was said to then have 49 employees, consisting of 11 full-time and 38 part-time staff. The delegate was not satisfied there had been significant change in staff composition of the business, to that which was used in the aforementioned calculations sent on 11 April 2018 (13 full-time and 34 part-time staff), therefore little weight was placed on the updated organisation charts lodged.
Next, the delegate referred to the Directors plans for future revenue generation but again, this was said not to overcome the delegate’s concerns regarding the businesses ability to support the additional wages should the nomination applications be approved. The delegate also considered the Interim Financial Statements provided for the period 1 July 2017 to 31 December 2017. The Profit and Loss statement in this report indicated a gross profit from trading of $679,774 total expenses of $658,614.56; resulting in a profit before income tax of $21,159.45. As there had been no significant increase in the profit of the business that would allow it to support the additional and annual salary costs of the nominated positions, little weight was placed on the Interim Financial Statements lodged.
Next, the delegate considered the accountant’s letter (Taxwave) dated 16 April 2018 (and 1 August 2017[6] and 22 February 2018[7]), which stated inter alia the “company is making steady growth. The financial results of each period are better than the previous one”. The delegate acknowledged the business had recorded a better profit in the interim financial statements provided to the Financial Statements for the period 1 July 2016 to 30 June 2017 (Profit from Ordinary Activities before income tax 21,159.45[8] – compared to $0 profit before income tax in 2016/2017), however, this figure was not sufficient to satisfy the delegate the applicant’s business had the capacity to pay for the additional staff. Therefore, little weight was placed on the accountant’s letter.
[6] PDF –p.35.
[7] PDF – p.82.
[8] PDF – from p.140.
Next, the delegate considered the selection of documents titled Evidence of Directors Experience in Hospitality Industry. However, though the Director has had experience in the industry, this did not indicate the business had the capacity to support the additional wages of the nominees and therefore little weight was placed on these documents.
On the basis of the evidence before them, the delegate was not satisfied the applicant’s business had the financial capacity to support its current declared workforce, let alone the additional full-time salary of the nominee. This was compounded by the fact there were (then) 17 nominated positions. The delegate was not satisfied that r.5.19(4)(d)(i) had been met, and the applicant had therefore not met r.5.19(4)(d); or r.5.19(4).
By s.359(2) letter dated 17 September 2019, the Tribunal requested further information. By emailed submissions on 15 October 2019, the applicant lodged:
·     BAS (01/07/2017-30/09/2017) – PAYG withheld - $22,500 / Total sales - $491,910 / Total salary, wages and other payments - $182,661
·     BAS (01/10/2017-31/12/2017) – PAYG withheld - $22,500 / Total sales - $491,910 / Total salary, wages and other payments - $168,003
·     BAS (01/04/2018 – 30 Jun 2018) – PAYG withheld - $115,931 / Total sales - $609,848 / Total salary, wages and other payments - $438,363
·     BAS (Jul 2018 – Sep 2018) – PAYG withheld - $22,500 / Total sales - $491,910 / Total salary, wages and other payments - $182,661
·     BAS (01/10/2018-31/12/2018) – PAYG withheld - $18,500 / Total sales - $410,589 / Total salary, wages and other payments - $171,302
·     Activity Statement (Apr 2019-Jun 2019): Total sales - $154,657 / Total salary, wages and other payments $16,237
·     Company Tax Return 2019 – Taxable net income $219,735 (also identified in the Detailed Profit and Loss Statement for the year ended 30 June 2019)
·     PAYG payment summary – year ended 30 June 2019 – gross payments $40,875 (for Iqbal SINGH)
At hearing, the applicant explained that he now operated five restaurants (having closed the Campbelltown restaurant in May 2018/9), and that the closure of that restaurant was principally responsible for the (substantially) improved profitability of the business in the 2018/2019 financial year. At hearing, the applicant said he needed all the new visa applicants to expand his business. However, it may also be that the two new restaurants the applicant is starting in early 2020 (in Wagga and Sydney city), may have (at least initially) a detrimental impact on the business profitability, something the applicant conceded at hearing.
At hearing, the applicant also explained the restaurant in Goulburn (where the visa applicant is employed) has two full time cooks and one part time cook. One full time cook had been employed at the restaurant since 2017; and the visa applicant had been employed as a part time cook at another of the applicant’s restaurants between 2015 and July 2016, and as a full time cook at the Goulburn restaurant from May 2018. It was also explained the visa applicant had entered Australia on a Student visa and had successfully completed a Certificate III & IV in Cookery; and a Diploma in Business Management.
Be that as it may, at hearing the Tribunal put information to the applicant pursuant to s.359AA of the Act. Amongst other matters, the Tribunal noted the delegate referred to 17 nominations then before the Department, and the Tribunal was aware of 22 merits review applications by the same nominator, and before the Tribunal. Ten of these nominations had now been withdrawn. Given that each nomination may cost up to $500, and that each merits review application may cost up to $1,800, and that each nomination was lodged with the assistance and cost of a migration agent, the Tribunal said it would consider whether this impacted the credibility of the process (in its entirety) and also whether this impacted the Tribunal’s findings about the applicant’s credibility.
In response, the applicant said he believed inter alia that he could offer full time employment to the visa applicant for a two year period. That being said, the Tribunal accepts that until 2018/2019, the business did enjoy modest profit, and that the increased profitability in 2018/2019, may be in large part attributable to the closure of the Campbelltown restaurant (in May 2018/9). Further, the Tribunal accepts the visa applicant was previously engaged as a part time cook at another of the applicant’s restaurants, and as a full time cook at the Goulburn restaurant from May 2018 (and in which capacity it was proposed he continue to work).
In the circumstances, the Tribunal believes it should extend to the applicant the benefit of the doubt and find that the applicant has the ongoing capacity to employ the visa applicant 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 r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.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 applicant lodged a contract of employment[9]; and an Employment Agreement dated 1 July 2017.[10] After having considered the contract of employment and other material information, the Tribunal accepts the proposed 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.
[9] PDF – from p.29.
[10] PDF – from p.38.

Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
The Tribunal has no evidence of any adverse information known to Immigration about the nominator or person associated with the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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.
The Tribunal has no evidence the nominator does not have 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.
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)
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:
·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.
At hearing, the applicant explained the Goulburn restaurant had commenced trading in 2011 and ceased in 2014. The restaurant had then recommenced in 2017 and had continued trading up to the hearing (and it was intended to continue). As noted above, the visa applicant had been employed as a full time cook in the Goulburn restaurant (the position for which he is nominated), since May 2018. It was also stated the nominated position (in Goulburn) is in a steadily growing business; and that the position has strengthened the operational structure.
With the Tribunal, the applicant lodged a RCB approval (RDA Southern Inland – IMMI 17/059) dated 22 August 2017.[11] The Tribunal also accepts the position is located in regional Australia (IMMI 17/059).
[11] PDF – from p.45.
Regarding ‘domestic recruitment efforts, with the Tribunal the applicant lodged evidence of advertising dated 5 July 2017[12]. The country information before the Tribunal indicates a scarcity of chefs/cooks in rural NSW.[13] In the circumstances, and after having discussed it at hearing, the Tribunal accepts there is a genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control; and the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
[12] PDF – from p.60.
[13] See ‘Skill Shortages’, Department of Employment, Skills, Small and Family Business, , accessed 16 January 2020.
In response to the Tribunal’s s.359(2) letter, the job description was said to include:
·Storing system of foodstuffs in different temperatures, Food storage-freezer and fridge content monitoring and stock rotation cooling and chilling food and using of them
·Baking (to bake all types of breads such as Roti, Naan, Paratha (stuffed bread) etc.
·Roasting (in Clay-oven(Tandoor); some of the famous entree dishes include Tandoori chicken, chicken tikka, Seekh Kabab and lamb cutlets etc)
·Frying (various vegetarian entree items like pakoras, samosas, pappadums, koftas, Vegetables, various vegetable dumplings etc.)
·Steaming (saffron basmati rice and various biryani’s(rice cooked with vegetable, chicken, lamb and variety of spices)
·Cutting vegetables, different herbs, preparing garnishes, preparation of the basic gravies and marination
·Preparing/cooking dishes using a variety of ingredients as per the requirements of the menu/day.
·Ensuring the quality of food at all times of preparation of food
·Proper Storage of raw and cooked food in different refrigerators and freezers to avoid cross contamination,
·Using different methods of cooking such as baking, deep frying, steaming, boiling, roasting and pan frying.
·Maintaining correct temperature of clay oven(Tandoor), deep fryer, refrigerators, freezers, cool room and other cooking equipment
·Using cooking equipment’s such as fryer, blenders, slicer, rice cooker, knives, chopping boards, microwaves, burners, clay oven(Tandoor) and food processors etc
·Storing cooked food at correct temperature
·Maintaining occupational health and safety procedures
·Ensuring FIFO (First in first out) procedures and supervising kitchen hand
·North and South Indian and Tandoori dishes
·Other specialisations may include entrées or desserts.
·Prepare stocks, soups, sauces, dips and accompaniments for Asian cuisines on daily basis
·Prepare salads, meat, poultry, seafood and vegetables items as on the menu
·Prepare, cook and serve, organise and prepare food
·Receive and store kitchen supplies
·Clean and maintain kitchen premises
·Prepare foods according to dietary and cultural needs
·Follow health, safety and security procedures and workplace hygiene procedures
The position is described in ANZSCO as follows:
UNIT GROUP 3514 COOKS
COOKS prepare, season and cook food in dining and catering establishments.
Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
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:
oexamining foodstuffs to ensure quality
oregulating temperatures of ovens, grills and other cooking equipment
opreparing and cooking food
oseasoning food during cooking
oportioning food, placing it on plates, and adding gravies, sauces and garnishes
ostoring food in temperature controlled facilities
opreparing food to meet special dietary requirements
omay plan menus and estimate food requirements
omay train other kitchen staff and apprentices
Occupation:
351411 Cook

351411 COOK
Prepares, seasons and cooks food in a dining or catering establishment.
Skill Level: 3
After having considered the evidence, the Tribunal is satisfied the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (IMMI 18/043).
Accordingly the requirements of r.5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mr S Norman
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)      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).

[2020] AATA 205

31 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction