Antonio & Maria Sergi (Migration)

Antonio & Maria Sergi (Migration) [2021] AATA 2319 (22 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Antonio & Maria Sergi
CASE NUMBER:  1930966
HOME AFFAIRS REFERENCE(S):          BCC2019/4955763
MEMBER:Cathrine Burnett-Wake
DATE:22 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 June 2021 at 2:38pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – documentary and oral evidence of operations and finances – difficulty recruiting and retaining staff in rural area – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(9)(d)
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 14 October 2019 to reject the applicant’s application for approval of the nomination of a position under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 3 October 2019. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: r.5.19(3)(a). If any of the requirements are not met then the application must be refused: r.5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. The nominator, Antonio and Maria Sergi, trading as Myee Quail Farm, nominated Ms Pretika Lata in the occupation of Office Manager (ANSCZO 512111).
The delegate refused the application on the basis the applicant’s nomination did not demonstrate a genuine need for the position in accordance with sub-regulation 5.19(9)(d).
Mr Antonio Sergi appeared before the Tribunal on 15 January 2021 via video hearing to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
The Tribunal has formed a different view to that of the Department. The Tribunal has had the opportunity to obtain substantially more evidence not available to the Department at the time of making its decision. Particularly persuasive was the oral evidence taken directly from Mr Sergi regarding the operation of his business and the need to employ Ms Lata and the difficulty attracting and retaining staff in a rural area.
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 general requirements for approval of the nomination set out in r.5.19(4) and the stream specific requirements set out in r.5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence of Mr Sergi at hearing
Mr Sergi told the Tribunal that Myee Quail Farm had been in operation since 1978 and that it had expanded considerably over that time and is now the second largest Quail Farm in Australia.
Mr Sergi explained the operation of the farm in detail. It is spread over 40 acres and is running 8 sheds. He explained that they have recently gained approval to erect and operate another 8 sheds, which they will commence work on, effectively doubling their capacity. He explained they are currently producing 40,000 quails per week, selling them at the wholesale level. In addition, they hatch approximately 80,000 quails every fortnight, and have approximately 200,000+ quails at any one time.
Mr Sergi explained that the farm had installed state of the art collecting system and that they currently have 24,000 layers and have recently expanded into the sale of eggs and were selling 12,000 eggs per week. He explained this was a new revenue stream for them, and they could not keep up with the demand.
Mr Sergi also explained that they make their own feed for the quail, producing 4 tonne per day in their state-of-the-art onsite mill. Mr Sergi explained that the birds are fed between 3-4 rations per day and the feed mix would differ depending on where the quail was at in its life cycle.
Mr Sergi explained that their processing plant operates 4 days per week and produces approximately 10,000 quail each operation day for fresh and frozen wholesale.
Mr Sergi told the Tribunal that he had a great deal of difficulty attracting and retaining workers as they were regionally located. Mr Sergi explained this was an ongoing problem for the farm. He explained that he needed assistance with the administration operations and office management and that he was having difficulty coping with all the paperwork and working extremely long hours.
Application requirements – r.5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in r.5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in r.5.37; and
·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 s.245AR(1) of the Migration Act 1958 (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: r.5.19(2)(fa), (fb). The liability is imposed by s.140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018, with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
The Tribunal has reviewed the application and is satisfied that:
- The application was made on the approved form 1395 (Internet) and was accompanied by the fee prescribed in r.5.37;
- The application identifies a person in relation to the position;
- The application identifies the subclass and stream to which the nomination relates, being a Subclass 187, that was made before 16 November 2019;
- The application accompanied a nomination training contribution charge;
- The application includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
- The application 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.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in r.5.19(2) and that r.5.19(4)(a) is met.
No adverse information known to Immigration – r.5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(b) is met.
Mandatory licencing, registration and memberships – r.5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
The occupation of Office Manager does not require mandatory licencing, registration and or membership.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(c) is met.
Satisfactory compliance with employment laws - r.5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal, that Fair Work or any other government agency has taken action against the nominee in relation to workplace relation laws. As such, the Tribunal is satisfied that the nominee has satisfactorily complied with workplace relations laws.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(d) is met.
Training contribution debts – r.5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s.140ZO of the Act, relating to recovery of nomination contribution charges and penalties for underpayments, has been paid in full.
There is no evidence before the Tribunal that there is any debt due by the nominator.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(da) is met.
Actively and lawfully operating business – r.5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The Tribunal is satisfied based on the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia, being a quail farm.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(a) is met.
Labour hire businesses – r.5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
The nominator is not involved in labour hire activities.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(b) does not apply.
Genuine need for employment – r.5.19(9)(c) and r.5.19(9)(d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and r.5.19(9)(d) requires this need to be genuine.
The Tribunal has reviewed the position description provided as part of the application as well as further supplementary evidence supplied to the Tribunal regarding the position. Based on the position description that was provided and the extensive verbal evidence provided by Mr Sergi during the hearing, the Tribunal is satisfied that the nomination application identified a need for a person to be employed in the position of Office Manager under the director control of the nominator and that this position is genuine.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(c) and (d) are met.
Future employment – r.5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, r.5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, r.5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, r.5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
The Tribunal has had regard to the documents provided on review, including current financial statements and BAS.
On balance, the Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's salary.
The Tribunal is satisfied on the material before it 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.
The evidence before the Tribunal indicates that the nominee's base salary is $60,120 plus superannuation. It was noted in the application form that there is no Australian performing equivalent work at the same location. Mr Sergi confirmed to the Tribunal that there were no equivalent workers within the business.
Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au, indicate that the base salary for an Office Manager, depending on experience, is between $44,000 and $82,000. The Tribunal is satisfied on the basis of salary data information that the nominee's base salary is within the appropriate range of that normally paid to an Office Manager in regional New South Wales and is ‘market rate’.
The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(e), (f) and (g) are met.
Annual earnings – r.5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in r.2.72(15) must be met, applying r.2.72(15) and (16) as if r.2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the relevant instrument. Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to the relevant instrument r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the relevant instrument (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa). However, in this case, the power under r.2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).
Evidence before the Tribunal show that nominee's annual earnings are $60,120 per annum. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.
The Tribunal has considered the evidence before it and is satisfied that the applicant in determining the annual market salary rate for the position, undertook salary market research. The nominee's Contract of Employment show that the nominee's annual earnings are $60,120 per annum plus superannuation. This amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specified this as $53,900). There is no evidence before the Tribunal to indicate that the annual market salary rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation.
For these reasons the requirements of r.2.72(15)(c) are met.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(h) is met.
No information to indicate less favourable employment conditions – r.5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Contract of Employment sets out the terms and conditions of employment and indicates that the nominee's salary will be $60,120 per annum with hours of work 38 hours per week. The nominee's leave entitlements are annual leave, personal leave, carers leave, compassionate leave, parental leave, community service leave and long service in accordance those set out in the National Employment Standards in the Fair Work Act 2009.
The Tribunal is satisfied on the totality of the evidence before it that there is no evidence before the Tribunal to indicate that there is information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(i) is met.
Tasks correspond to specified occupation – r.5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in r.5.19(10) or r.5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a

Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.

Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: r.5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: r.5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under r.5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: r.5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: r.5.19(12)(f).
Mr Sergi, at hearing, gave evidence that the position of Office Manager had been advertised repeatedly and he had difficulty attracting suitable applicants. Additionally, Mr Sergi described the challenges and difficulty of recruiting somebody in the regional area, and that most people who applied were not suitable or did not have the relevant skills and qualifications.
The Tribunal is satisfied that there are no other relevant people (Citizens and/or permanent residents) in the particular location that can fill the position and that Mr Sergi made all reasonable attempts to find someone from the local area.
A detailed position description of the duties for the role of Office Manager has been provided which specifies the tasks of the nominated position. The Tribunal has examined the relevant instrument and is satisfied the information provided by the nominator, to the Tribunal, shows the tasks allocated to the nominated position correspond to the tasks of an Office Manager as per the relevant ANZSCO code for that occupation.
The nominator provided a signed Regional Certifying Body Advice Certificate (Form 1404) from the Regional Development Australia Riverina Inc. The legislative instrument in force at the time of application, lists them as the relevant certifying body.
The Advice Certificate from the Regional Development Australia Riverina Inc, addresses the following detail:
- the terms and conditions of employment will be no less favourable than those provided to an Australian citizen/permanent resident performing equivalent work in same workplace at the same location;
- there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
- the position cannot be filled by an Australian citizen/permanent resident who is living in the same local area as that place.
Given the above findings, the Tribunal is satisfied that r.5.19(12) is met. Accordingly, r.5.19(9)(j) is also 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.
Cathrine Burnett-Wake
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2021] AATA 2319

22 June 2021

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