ANTONIOS SOLUTIONS PTY LTD (Migration)

ANTONIOS SOLUTIONS PTY LTD (Migration) [2017] AATA 2063 (27 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ANTONIOS SOLUTIONS PTY LTD
CASE NUMBER:  1701534
DIBP REFERENCE(S):  BCC2016/1521659
MEMBER:R. Skaros
DATE:27 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 27 October 2017 at 10:14am

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Direct Entry Nomination stream – Nominator meets the requirements for training – Nominator is actively and lawfully operating a business – Need for the nominator to employ a paid employee
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 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 Immigration on 9 January 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 21 April 2016. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i) of the Regulations because the delegate was not satisfied that the requirements relating to training had been met. As the position was not located in regional Australia, the delegate also found that the applicant did not satisfy the alternative criteria in r.5.19(4)(h)(ii). The delegate concluded that the nominator did not meet r.5.19(4)(h) and the nomination therefore could not be approved.
A copy of the delegate’s decision record was provided with the application for review. Also provided were submissions from the representative dated 17 November 2016 regarding a number of the requirements in r.5.19(4) together with supporting documents, including evidence that the applicant had made payments to TAFE NSW towards training benchmark A to demonstrate that they met the requirements relating to training.
The requirements for approval of a nomination of a position under r.5.19 must be met at the time of decision. Accordingly, the Tribunal wrote to the applicant’s Director, Mr Antonio Carlos Canto, on 28 March 2017 inviting the applicant to provide current information to demonstrate they meet all the requirements 5.19(4) for approval of the nomination of the position under the Direct Entry stream.
On 7 April 2017 a number of documents were uploaded to the Tribunal’s online lodgement facility, including, evidence of the applicant’s approval as a standard business sponsor and approval of a nomination under s.140GB in the occupation Painting Trades Worker in respect of Mr Canto. Also provided were financial reports as at 30 June 2016, 2016 company tax return, activity statements for the periods between 1 April 2016 and 31 December 2016 and job advertisements in respect of vacancies in the nominator’s business.
On 13 April 2017 the Tribunal requested further information, including an explanation for why the business activity statements do not show any sales for the period from 1 April 2016. On 19 April 2017 the Tribunal received financial documents and an email from the applicant’s representative stating that the financial statements show a turnover of $86,783 and that the income activity statements do not show sales due to the setup of the accounts with the tax office.
On 21 April 2017, the Tribunal wrote to Mr Canto, via his representative, inviting him to appear on behalf of the applicant at a hearing before the Tribunal at 9:30AM on 11 May 2017. In the hearing invitation letter the Tribunal requested that complete bank statements for the applicant for the preceding 9 months be provided prior to the hearing.
On 1 May 2017 the Tribunal received an email from the representative advising that the business owner, Mr Canto, is offshore. The representative asked if they could instead receive a decision without a hearing. On the same day, an officer of the Tribunal wrote to the representative advising that the Tribunal had not received the bank statements and that once received, the member would advise whether a decision can be made on the evidence before it. On the same day, the representative sent an email to the Tribunal enclosing Westpac Business account activity statements. While the statements showed that regular transfers, described as wages to Mr Canto on the statement, for different amounts, no deposits had been made into that account since 19 December 2016.
On 2 May 2017 an officer of the Tribunal wrote to the applicant’s representative advising that the Tribunal can conduct the scheduled hearing by telephone. The representative was requested to complete and return the response to hearing form. The officer asked the representative to provide a telephone number on which Mr Canto can be contacted if he wished to attend the scheduled hearing. The officer also explained that if Mr Canto did not wish to attend the hearing then he should indicate this on the response to hearing form and that in the circumstances the Tribunal would proceed to a decision on the information before it.
On 5 May 2017 the representative sent an email to the Tribunal stating that the applicant is in Brazil and that the time there will be 11:30pm which is not suitable. On 8 May 2017 an officer of the Tribunal emailed a copy of the response to hearing form to the representative and requested the form to be completed and returned to the Tribunal.
The day before the hearing, the Tribunal received a completed response to hearing form indicating that Mr Canto would not be attending the hearing but that the representative would attend. It was indicated in Part 4 of the response to hearing form that the form was signed on behalf of, and with the consent of, all applicants. The signature and name that appeared on the form was that of the representative.
The representative appeared before the Tribunal on 11 May 2017. The Tribunal explained to the representative that the legislation required the applicant, or in this case a natural person authorised by the applicant, i.e. Mr Canto, to appear on behalf of that applicant to give evidence and that the Tribunal could not receive evidence from her. The representative stated that she had advised the Tribunal that Mr Canto is in Brazil and that the time was not suitable and had not received any response from the Tribunal about this. The Tribunal noted that she had not requested the hearing be postponed nor had she indicated what time would be more suitable for Mr Canto to appear. After some discussion about the Tribunal’s procedures, the representative admitted to not having advised Mr Canto about the hearing. The Tribunal expressed its concern about the representative’s conduct and explained that it considered her failure to inform the applicant to be a serious breach of her obligations. The Tribunal considered that it would be unfair to proceed to a decision in the circumstances and decided to adjourn the hearing and gave the representative until close of business the following day, 12 May 2017, to contact Mr Canto and seek instructions on whether he wished to participate in the hearing and to advise the Tribunal accordingly.
At 12:20pm on the same day the representative advised the Tribunal that Mr Canto is available on 12 May 2017 at the same time if that was suitable. The Tribunal agreed to conduct the hearing at that time and wrote to the representative confirming that the Tribunal would resume the hearing on 12 May 2017 at 9:30AM. The Tribunal received a completed response to hearing form confirming that Mr Canto would attend the hearing by telephone at the schedule time.
Mr Canto appeared before the Tribunal on 12 May 2017 by telephone from Brazil to give evidence and present arguments. The Tribunal also received oral evidence from Ms Therese Lauriola from the Master Painters Association also by telephone. The representative attended the hearing.
Procedural issues
In addressing the procedural issues in this matter, the Tribunal is satisfied that it had properly notified the applicant’s director of the scheduled hearing in that the invitation was sent to the authorised representative by email and the prescribed period of notice in relation to the hearing on 11 May 2017 was given. Although at the representative indicated that the time was not suitable for Mr Canto there was nothing in that correspondence to suggest that the representative was requesting a postponement of the hearing. Given the representative’s admission that Mr Canto was not made aware of the hearing, the Tribunal considered it appropriate, in the interest of fairness, to adjourn the hearing until the representative sought instructions from Mr Canto as to whether he wished to participate in a hearing. For this reason, the Tribunal gave the representative until close of business the following day to seek instructions from Mr Canto and advise the Tribunal accordingly. As indicated above, the representative advised the Tribunal that Mr Canto was available to participate in a hearing at the same time the following day (12 May 2017) if that was suitable. The Tribunal was able to accommodate that time and sent Mr Canto, through his representative, advice of the reschedule hearing. On the same day the Tribunal received confirmation of Mr Canto’s attendance at the reschedule hearing. The Tribunal acknowledges that Mr Canto was not in Australia and was not aware that a hearing had been scheduled for 11 May 2017 due to his representative not advising him. Although one day’s notice may not appear to be a reasonable period of notice, the Tribunal is satisfied that it was reasonable in all the circumstances of this case because the hearing was rescheduled on a day and time requested by Mr Canto, which the Tribunal was able to accommodate. Mr Canto did attend the rescheduled hearing and the Tribunal is satisfied that he had a real and meaningful opportunity to give evidence and present arguments on behalf of the nominator at that hearing. The Tribunal also provided additional time after the hearing for submissions and supporting evidence to be provided.
The Tribunal has considered the relevant evidence before it, including information on the Department’s file, information on the Tribunal’s file and the oral evidence received at the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
This case at turned on two requirements: The first, is whether at the time of the Tribunal’s decision, the applicant is actively and lawfully operating a business in Australia, as required by r.5.19(4)(b)(i). The second, is whether application identifies a need for the nominator to employ a paid employee to work in the position, as required by r.5.19(4)(a)(ii).
At the hearing, Mr Canto confirmed that he is the Director and sole shareholder of Antonious Solutions Pty Ltd (the nominator). He stated that the nominator operates a business that provides painting services. He stated that at this point in time the business only employs one person, himself. Mr Canto also indicated that he has been in Brazil since December 2016. Mr Canto indicated that the business is located in Ashfield. When asked if the business’ location was a residential address, Mr Canto confirmed that it was. He indicated that he continues to pay the rent as his van and tools are kept in the garage. When asked if any work had been undertaken by the business since his departure from Australia in December 2016, Mr Canto stated that no work had been undertaken since that time and that he had stopped the business’ operations whilst he has been in Brazil. The representative advised the Tribunal that the applicant had a Subclass 457 visa pending and that the sponsorship and nomination had already been approved. They hoped the 457 visa would be granted soon.
The Tribunal explained to Mr Canto that it was required to assess the requirements for approval of the nomination on the evidence before it at the time of decision. It noted that the evidence before it suggests that the company has not been actively operating a business in Australia since December 2016. The Tribunal explained to Mr Canto the two issues that were of concern to it in this case. Firstly, it noted that on the information before it, it appears that the applicant is not currently actively operating a business in Australia. The second concern is that the nominator may not be able to establish a need to employ someone in the position given that Mr Canto was essentially trying to sponsor himself. The Tribunal acknowledged the submission that there was nothing in the legislation precluding Mr Canto from nominating himself through a company structure given that the company is a separate legal entity. The Tribunal noted however that there may not be a genuine vacancy within the business as Mr Canto, who is the sole employee, was not in Australia and the business was not currently undertaking any work. The Tribunal noted that the need in this case has been self-created and would not arise until Mr Canto returned to Australia and the business recommenced active operation. The Tribunal expressed its concern that given the business was not currently engaged in any work there is no need for the business to employ anyone.
In response to the Tribunal’s concerns, Mr Canto stated that he had lived in Australia for 10 years. He has been engaged in the community and has done the right thing. He has invested his money and future in Australia. In relation to his business, he stated that he is good at what he does and was advised that he could sponsor himself to get a visa to settle in Australia. He was advised to return to Brazil to await the outcome of his application. He stated that he would be happy to return to Australia and keep the business operating.
The Tribunal explained to Mr Canto that it had to make its decision on the evidence now before it. The Tribunal acknowledged, as it explained to Mr Canto, that if he is able to return to Australia that the business would recommence operation but noted that it could not speculate on the outcome of his other visa applications, namely the 457 visa which it acknowledged would permit him to return to Australia and work in the business. The Tribunal also expressed its concern that it could not, on the evidence now before it, conclude that the company is currently actively operating a business in Australia.
The representative also made oral submissions, which the Tribunal has considered. The representative stated that the decision was tainted with jurisdictional error because of the Department’s assessment of the training requirements. She submitted that the delay, which the Tribunal is referring to as leading to the business not actively trading, was caused by the Department and should not prejudice the nominator in this case. It was also submitted that there is no provision against self-sponsorship and that the position is genuine because the company has advertised for the position on gumtree or associated websites. It was also submitted that there is a shortage for painters and apprentices across Australia and the need to sponsor Mr Canto arises from the business’ need to have a stable employee as subcontractors are too unreliable and do not show up for work or complete work which causes huge financial burdens for the nominator. It was submitted that the need is independent from the business’ operations and that the applicant has received the latest IAS (ATO itemised account statement) in 2017 which shows that the business is still trading. It was submitted that there is no active steps to deregister the business or stop trading and that it is actively trading. It was submitted that Mr Canto has been finding it difficult to delegate work from offshore and has not been able to hire a steady workforce.
In considering these submissions, the Tribunal explained that the difficulty in this case is that the business is not entirely separate from Mr Canto and that even though the applicant it is a separate legal entity, the financial statements clearly indicate that the business has not derived any income since Mr Canto departed Australia in December 2016. The Tribunal noted that the need for the nominator to employ someone in the position does not arise at this time because the nominator has not been providing any painting services.
The Tribunal also explained that in its view the delegate’s decision was not incorrectly decided as the evidence of training expenditure was not in respect of ‘employees of the business’ but employees of a third party training organisation and so did not meet the requirements relating to training in benchmark B. The Tribunal noted however that the nominator had now made a payment of at least 2% of the payroll to an industry training fund and met the training requirements in benchmark A, and so at the time of this decision the applicant could overcome the issue in relation to training.
In respect of the administrative delays cause in assessing the nomination, the Tribunal noted that there is no provision in the legislation to take into account administrative delays and that when the Tribunal makes its decision, it must do so on the evidence available to it at the time of decision.
Mr Canto stated that he has been trying to operate the business from Brazil and has kept in contact with his clients. He continues to pay $300 a month to HI-Pages, an online site that give him leads for work, and his mobile is still operating and he gets calls for work. The representative indicated that evidence of request for quotes can be provided which would show that the business is trading. She stated that the company is still advertising on Apps such as Houzz, which is for tradespeople to show their work and gain new leads, and HI-Pages which shows that the business is trading. The Tribunal has considered this evidence and the related supporting documents, which were provided after the hearing, further below.
The Tribunal has also had regard to the evidence of Ms Lauriola whom the Tribunal called during the hearing. Ms Lauriola stated that she can confirm that Mr Canto is a member of the Master Painter’s Association, he took on two apprentices that she is aware of and she has communicated with him when he was in Brazil and knows that he has been trying to return to Australia.
On 26 May 2017 the Tribunal received written submissions from the representative together with supporting documents. In addressing the Tribunal’s concerns as to whether the nominator is actively and lawfully operating a business in Australia, the representative referred to the procedures advice manual. She submitted that actively and lawfully operating is not defined in the Migration Regulations nor in the Corporations Act and that business activity is a further term that is not defined.
In referring to the procedure advice manual, the representative provided an extract of the guidelines for delegates in determining lawful operation, active operation, start-up businesses and established businesses. The representative noted that in the policy it states that companies that have been legally established but are not operating any business activity (shelf companies) cannot satisfy the relevant regulation. It was submitted that the nominator is not a shelf company and that it is able to demonstrate its business activity through the following: the latest IAS (itemised account statement) and BAS (business activity statement) for 2017, the 2016 financial statement and tax lodgement, and the current letter from the accountant stating that they are of the belief that the business is a going concern. A copy of these supporting documents, to which the Tribunal has had regard, were attached to the submissions.

It was submitted that the legal definition of shelf-company is a company formed but not actually engaged in any business activity. It was stated that the ATO advises that there is if there is no business activity, BAS should be completed as $0 - it was submitted that in January to March 2017 the BAS for the nominating business showed activity on the BAS and the nominator is therefore not a shelf company.
It was submitted that the business is not a start-up business and that it is an established business, is not a shelf company and has been operating since its registration. It was submitted that delegates are instructed not to consider the viability of the business and that delegates are instructed to consider financial statements provided prior to lodgement. It was submitted that the business has been trying to delegate work to other contractors but due to the chronic shortage of painters in Australia this has proven difficult to recruit any suitably qualified staff. It was submitted that the business is actively operating because it is paying wages, advertising positions which remain currently available, promoting the business on Houzz and Hipages, receiving requests for quotes and work orders, is registered with ASIC, is enrolled with the Master Painters Association to provide training to apprentices, purchasing of supplies, has a current trade licence and has current projects outstanding.
The representative submitted that the member should not use the word ‘trading’ as part of the definition as r. 5.19(4) does not use the word trading. In addition to the documents referred to in the above above submission, other supporting documents provided included printout of a jobs advertisement on Indeed by the nominator for painter and decorator apprenticeships - which appear to have been created on the website on 17 November 2016, together with a list of persons who applied for the positions between November 2016 and March 2017, tax invoices confirming monthly payments to Hi-Pages for inclusion in that directory and work leads. Printout from the applicant’s profile on Hipages.com.au, which includes feedback from customers. The Tribunal notes that the most recent feedback provided was in 28 December 2016. Also provided was correspondence with customers regarding potential work and requests for quotes and information regarding skills shortage in Australia, and in particular NSW, for qualified painting trade workers.
The Tribunal has considered the submissions and supporting documents. Firstly, the Tribunal notes that it has listened to the hearing recording carefully and can confirm that it did not use the word ‘trading’ when discussing the requirements with the applicant at the hearing and that it was the representative that consistently used the word trading when making oral submissions. The oral submissions made at hearing and the Tribunal’s remarks and explanations at the hearing are set out above.
The Tribunal has had regard to the extracts in the policy referred to in the submissions, and the submissions made by the representative, the Tribunal notes however that it is not bound by policy and must assess the evidence before it against the relevant provisions.
Regulations 5.19(4)(b)(i) requires the nominator to be actively and lawfully operating a business in Australia. The Tribunal accepts that the company is lawfully established in Australia, in that it has registered with ASIC, has an ABN and ACN, and that it has maintained its lawful operation in Australia through lodgement of activity statements and company returns with the ATO. The concern for the Tribunal however is whether the nominator is actively operating a business. The Tribunal accepts that the term actively operating is not defined in the regulations. However, in the context of the purpose of the employer nomination visa scheme, which is to allow Australian employers to recruit non-Australians to fill skilled vacancies in their business, and the requirements in r.5.19 for approval of nominated positions, the Tribunal considers that the business, in which the need arises to employ a person in the position, should be actively (i.e. positively) engaged in providing goods and/or services to its customers. In this case, the applicant’s business has not provided any painting services since its Director and only employee, Mr Canto, returned to Brazil in December 2016. The evidence and supporting documents, including the bank statements, confirm that no sales/income has been generated since Mr Canto’s departure. The Tribunal accepts that the company continues to pay Mr Canto a salary, that it lodges activity statements and tax returns and that it has a web presence and receives regular enquiries for the provision of services, however, the evidence indicates that the applicant has not carried out any painting work since Canto’s departure from Australia in December 2016. In the circumstances, it is difficult to be satisfied that the applicant is actively operating a business in Australia when the business has not provided painting services for over 9 months. The Tribunal acknowledges that Mr Canto has applied for a 457 visa to be able to return to Australia and work for the nominator, however, it is not known if and when Mr Canto will be granted a 457 visa and as such any suggestions regarding when the business may be able to recommence active operation would be speculative.
The Tribunal notes that if the applicant’s business provided the relevant services to its customers during Mr Canto’s absence from Australia, either through the employment of other painters or sub-contractors, then it would have been able to maintain its active operation. The Tribunal acknowledges the submissions that there is a shortage of qualified painters and that Mr Canto has attempted to recruit suitably qualified person but has found them unreliable. However, this does not assist the applicant in this case, as the business’ inability to continue to provide the relevant services to customers without Mr Canto essentially means that it has not been able to maintain its active operation.
For all the above reasons, the Tribunal is not satisfied that the nominator is at the time of this decision actively operating a business in Australia. The requirement in r.5.19(b)(i) is therefore not met.
Alternatively, the Tribunal is not satisfied on the evidence now before it that the application identifies a need for the nominator to employ a paid employee to work in the position. In this case, the position is painter and involves carrying out the painting services provided by the applicant’s business. The applicant’s business has not been engaged in the provision of painting services since December 2016 and the Tribunal is not satisfied that there remains a need, given the time that has passed since the business last provided these services, for the nominator to employ a painter. The Tribunal acknowledges that the applicant has a web presence and that Mr Canto has been receiving leads from those sites, including requests for quotes for painting works, however, the evidence is that the applicant’s business has not carried out any painting services for over 9 months. Although it was submitted that the applicant’s business had outstanding projects to complete, this did not appear to be substantiated by the supporting documents provided. The Tribunal does not consider that the evidence of enquiries from former customers or those seeking quotes to be evidence of outstanding projects. The Tribunal is not satisfied that these potential customers would wait for an indefinite period until Mr Canto returned to Australia carry out painting services and is of the view that potential customers would likely seek another painter to carry out the painting work.
The Tribunal has had regard to the submissions that Australia is experiencing a shortage of skilled painters. The Tribunal accepts, based on the supporting information provided, that the occupation of painter is in demand and that a shortage of qualified painters in Australia and particularly NSW. However, this does not necessarily establish that there is a need for the applicant to employ a qualified painter in its business. The regulations require the need to be respect of the nominator and their need to employ a person in the position and not the need for Australia generally. In this case, the applicant’s business has not carried out any painting services since December 2016 and in the circumstances, the Tribunal is not satisfied that the nominator has established a need to employ a paid employee in the position.
The Tribunal acknowledges that the applicant has been paying Mr Canto a regular wage, however, the Tribunal considers this employment to be somewhat artificial given that Mr Canto, who is the proprietor and only employee, has directed these wages to be paid to himself even though the business has had no sales/income since his departure from Australia. In the circumstances, the Tribunal is not satisfied that the employment of Mr Canto demonstrates the nominator’s need to employ a paid employee in the position.
For the above reasons, the Tribunal is not satisfied that the nomination identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The requirement in r.5.19(4)(a)(ii) therefore is not met.
Given the above, the Tribunal finds that the requirements for approval in r.5.19(4)(a) and/or (b) have not been satisfied.
Conclusion
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
R. Skaros
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;
(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;
(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).

[2017] AATA 2063

27 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction