APR Healthcare Services Pty Ltd (Migration)

[2020] AATA 263

APR Healthcare Services Pty Ltd (Migration) [2020] AATA 263 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  APR Healthcare Services Pty Ltd

CASE NUMBER:  1719602

DIBP REFERENCE(S):  BCC2017/449761

MEMBER:De-Anne Kelly

DATE:5 February 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 05 February 2020 at 2:46pm

CATCHWORDS

MIGRATION – Nomination – Direct Entry nomination stream – Area of Need status – no longer classified as Area of Need – no longer classified as District of Workforce Shortage – need for position not identified – decision under review affirmed

LEGISLATION

Health Practitioner Regulation National Law (NSW) s 67(5), (6)
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 August 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).

2. The applicant applied for approval on 3 February 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(ii) of the Regulations because there was no employment contract provided with the application. The delegate could not determine that the terms and conditions of the employee’s employment would not include an express exclusion of the possibility of extending the period of employment.

5. The applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

6. The applicant was represented in relation to the review by its registered migration agent.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 following documents were provided:

   1)Notification of refusal of nomination application for APR Healthcare Services Pty Ltd from Department of Immigration and Border Protection dated 16 August 2017.

   2)Employment agreement between APR Healthcare Services Pty Ltd and Dr Dissanayake dated 26 September 2017 and 29 August 2019.

   3)Job description for general practitioner at APR Healthcare Services Pty Ltd.

   4)Organisation chart from 2017.

   5)Organisation chart from 2019.

   6)Business activity statements covering the period July 2017 to June 2019.

   7)APR Healthcare and Wellness Management Service trust financial statements to 30 June 2018 and 30 June 2019.

   8)ANZSCO for medical practitioners.

   9)ASIC current and historical company extract for APR Healthcare Services Pty Ltd.

   10)Area of Need certificate and covering letter from New South Wales Ministry of Health approval from 26 August 2014 to 31 July 2017 for Central Pottsville Medical Centre.

   11)Letter of support from Medicare local North Coast New South Wales for Central Pottsville Medical Centre application for Area of Need status dated 23 June 2014.

   12)North Coast primary health network NCPHN, population-needs assessment 2018.

   13)ASIC business name registration for Central Pottsville Medical Centre, Holder name the trustee for APR Healthcare and Wellness Management Service trust with renewal date 13 July 2020.

   14)Trust deed for the APR Healthcare and Wellness Management Services Unit trust.

   15)Nominated salary and market salary survey information including three vacancies for medical practitioners in regional areas.

   16)The Trustee for APR Healthcare and Wellness Management Service trust profit and loss from 1 Feb 2016 – 31 Jan 2017; for the 12 months ending 30 May 2016.

   17)Payroll advice for trainee Maddison Carter from 25 June 2018 to 24 February 2019 showing annual salary $47,424.

   18)Letter from registered migration agent dated 28 January 2020 regarding training costs and need for the position.

   19)Training contract for Maddison Carter dated 10 May 2016.

   20)Certificate III and IV in Business Administration awarded to Maddison Carter.

   21)Completion of traineeship letter from Department of Industry New South Wales regarding Maddison Carter dated 5 May 2017 and 26 September 2018.

   22)Payroll summary for Maddison Carter from 1 July 2018 to 3 June 2019.

   23)Letter of support for Central Pottsville Medical Centre from North Coast Primary Health Network for Area of Need Status application – dated 30 January 2020.

9. The Tribunal has carefully accounted for all documents by comparing the paper-based file to the list above, by comparing the electronic file of documents to the list above and by opening each electronic document file to ensure that all attachments are recorded in the list above. The Tribunal is satisfied that all documents have been properly accounted for and included in the list above. The Tribunal has carefully considered all documents.

10. APR Healthcare Services Pty Ltd trading as APR Healthcare and Wellness Management Services was established on 16 March 2014 under ABN 14989683350. The head office is located at Unit 10, Gallery View, 220 Varsity Parade, Varsity Lakes QLD 4227.

    The practice has submitted the following Profit and Loss figures for the financial years shown.

Profit and Loss	2019	2018	2017
Income	2,181,510	2,624,742	2,351,053
Expenses
Doctors Payments	1,483,481	1,802,481	1,621,905
Wages	286,112	132,325	126,306
Superannuation	19,372	9,114	8,134
Expenditure other	236,106	306,647	210,579
Total Expenses	2,025,071	2,250,567	1,966,924
Nett Income	156,439	374,175	384,129

1. On 3 February 2017 the applicant lodged an employer nomination application for visa Subclass 186 in the stream direct entry for the position of general medical practitioner in favour of Dr Dissanayake. The regional location for the position was Suites 6 and 7, 5 Coronation Avenue, Pottsville, NSW 2489. The nominated salary was $100,000 per annum as guaranteed earnings or 65% of fees billed whichever was the greater. Pottsville is a picturesque seaside town located in the Northern Rivers region of New South Wales in the Tweed shire. It is 133 kilometres south of Brisbane, Queensland and had a population of 6,704 at the 2016 census. The applicant maintains that the clinic serves both the resident population and the large number of tourists that visit the region.

   The application is compliant: r.5.19(4)(a)

2. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

3. Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 3 February 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded ‘yes’ in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Migration Act 1958’.

4. The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

5. The Tribunal needs to consider if there is a need for the nominated position such that it satisfies r.5.19(4)(a)(ii) which provides as follows:

   (ii)       identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

6. The use of the wording ‘identifies a need’ suggests something more than merely a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to organise or establish as being a particular person or thing; attest or prove to be as claimed or asserted’. The Tribunal considers it must prove the claim that there is a need for the paid employee to work in the position of medical general practitioner for the nominator.

   Area of need and district of workforce shortage status

7. The Health Practitioner Regulation National Law (NSW) s.67(5) and (6) provides as follows:

   (5) A responsible Minister for a participating jurisdiction may decide there is an Area of Need for health services in the jurisdiction, or part of the jurisdiction, if the Minister considers there are insufficient health practitioners practising in a particular health profession in the jurisdiction or the part of the jurisdiction to provide services that meet the needs of people living in the jurisdiction or the part of the jurisdiction.

   (6) If a responsible Minister decides there is an Area of Need under subsection (5), the responsible Minister must give the National Board established for the health profession written notice of the decision.

8. It was noted that the applicant had provided with the original application on 3 February 2017, an Area of Need certificate and covering letter from the New South Wales Ministry of Health with an approval from 26 August 2014 to 31 July 2017 for Central Pottsville Medical Centre.

9. The Tribunal is not bound to follow policy however it would be helpful to consider the Procedures Advice Manual[1] from the Department of Immigration and Border Protection website that states as follows:

   [1] PAM – Div5.3/Reg5.19 Approval of nominated positions (employer Nomination) – Migration Regulations 1994 (Cth.) – Divisions – 03/02/2017 – 22/02/2017.

   Area of Need

   The information provided here is specific to s67 of the National Law.

   Medical practitioners with this type of registration are usually working under supervision in an area of medical workforce shortage. Usually, they are registered to practise in a rural or remote location. These practitioners have been assessed by the Board as having the necessary skills, training and experience to undertake this practice safely. The State or Territory Minister for Health (or their delegate) must declare that the area in which the applicant will work is an ‘Area of Need’. 

10. The New South Wales government health website provides a summary of the Area of Need program as follows:

    The Area of Need Program assists employers in NSW who have had difficulty recruiting medical practitioners with specialist registration, to then recruit suitably qualified international medical graduates to vacant positions that have been approved by the NSW Ministry of Health as an Area of Need.

11. The ‘policy directive’ from New South Wales government health goes on to state ‘the program is a strategy to provide temporary assistance to locations and services experiencing shortages. The priority remains on continued efforts to attract and recruit Australian citizen/permanent resident medical practitioners who have specialist registration to vacancies’. Under ‘mandatory requirements’ it states ‘Area of Need status can be obtained by both public and non-public health employers. This policy applies to New South Wales public health facilities, private hospitals, day procedure centres and general practices’.

12. Under ‘implementation’ the policy states ‘the employer, once it has an approved Area of Need position, is responsible for: recruiting suitable IMGs (international medical graduates) to the position; ensuring that the appropriate registration has been obtained from the medical Board of Australia; and ensuring the appropriate District of Workforce Shortagestatus and other required documentation is obtained if the practitioner is to undertake Medicare billing. The employer is also responsible for continuing its attempts to recruit suitable practitioners with specialist registration’.

13. Applications for Area of Need status for a vacant GP position or for an extension of Area of Need status have to submit the required documentation, proof of advertising, evidence that the position is located in an area that has District of Workforce Shortagestatus as determined by the Department of Home Affairs and evidence of stakeholder consultation with the relevant specialty college, chief executive of the relevant local health district and the relevant Medicare local.

14. Chief Executive Officer for APR Healthcare Services Pty Ltd advised that the Area of Need certificate from the NSW government Ministry of Health had expired on 31 July 2017 and the practice had not sought to extend or apply for another Area of Need certificate because the area was no longer classified as a district of workforce shortage. This was a mandatory requirement for a successful application for Area of Need status.

15. The Tribunal checked the NSW government Ministry of Health website where a list of ‘General practitioner – Area of Need vacancies’ are listed and found no approved Area of Need vacancies for Pottsville NSW 2489.

16. The Tribunal noted the letter of support for Central Pottsville Medical Centre from North Coast Primary Health Network for Area of Need (AON) Status dated 30 January 2020. The letter notes that 19.6% of the population is over 65 years. It notes there are 9.0 full-time equivalent general practitioners; a ratio of 1.3 per 1,000 which is an improvement on the figure the same organisation gave in its letter of support on 23 June 2014 when the ratio was 1:1,194 or 0.84:1,000. The letter goes on to state that the town’s population swells during holiday periods. The letter does note that Central Pottsville Medical Centre is not located in an area that has district of workforce shortage status but the NCPHN states it supports all applications for AON status. The Tribunal notes that Central Pottsville Medical Centre has requested a letter of support from NCPHN for an Area of Need status application but notes also the NSW Ministry of Health requires all applications to show evidence that the position is located in an area that has District of Workforce Shortagestatus as determined by the Department of Home Affairs. It seems unlikely that the Central Pottsville Medical Centre will be granted an Area of Need status since it cannot provide evidence of a mandatory requirement. The Tribunal considers the reference to an application for Area of Need status for Central Pottsville Medical Centre is aspirational and there is no evidence that such an application will succeed and therefore the Tribunal gives it no weight.

17. The Tribunal found it was reasonable to conclude there was not a need for the position of medical general practitioner, when the NSW Ministry of Health whose role it is, under s.67, to determine areas of need for general practitioners found Pottsville was no longer an Area of Need and was not classified as a district of workforce shortage. The Tribunal places considerable weight on the opinion of the NSW Ministry of Health assessment of need. The applicant advised that they would make a written submission within 14 days.

    Business activity

18. The nominated position of medical general practitioner fits in the scope of the business being a medical practice and the position has been filled for the past two and a half years by the nominee as a temporary resident so these are matters that the Tribunal gives some weight.

19. The Tribunal needs to determine if there are additional factors that would indicate a need for the position such as an increase in business activity or overtime work for employees currently in the position.

20. The business from 2018 to 2019 has suffered a significant decline in income from $2,624,742 down to $2,182,510 or a 17% decline of $442,232. The Chief Executive Officer gave an explanation of this at the hearing which related to the doctors’ payments not being considered when the overall income is assessed. The Tribunal could not see this and there was considerable discussion at the hearing about this matter as the Profit and Loss clearly shows the doctors’ payments as being deducted as part of expenses and not impacting on the overall income figures. The Chief Executive Officer also said he was relatively new to the role and not familiar with all details regarding the financial reports. The applicant was invited to make a written submission within 14 days.

21. The Tribunal also noted that far from overtime work increasing for the doctors their payments had declined from 2018 to 2019 by $319,000 from $1,802,481 to $1,483,481, a decline of 18%. Since the income of the business had declined it was expected that the share of monies paid to the doctors would decline as well. The Tribunal in assessing the need for the nominated position places considerable weight on the declining revenue of the practice and the declining payments to the doctors.

22. The organisation chart submitted in 2017 showed a chairman, managing director, six Australian doctors, two doctors on 457 visas and a head of IT. The practice has a practice manager, two registered nurses and two receptionists. The organisation chart submitted with the review application shows a chairman, director and a chief executive officer overseeing four Australian doctors and two doctors on 457 work visas. The number of administrative staff was unchanged. No explanation was offered for the decline in numbers of doctors working in the practice.

    Submissions

23. During the hearing, the migration agent stated that originally two doctors from the practice, Dr Walpola and Dr Dissanayake, had their employer nominations refused by the delegate of the Minister. Dr Walpola had elected to resubmit his application to the Department and was granted a visa while Dr Dissanayake chose to wait for the Tribunal decision. The migration agent stated that it would be unfair if Dr Dissanayake’s patience resulted in the Tribunal affirming his employer nomination and visa application. The Tribunal cannot make a decision based on whether a decision is perceived as being unfair but must have regard to the legislation.

24. At the hearing, the Tribunal advised the applicant that under s.359AA of the Act the fact that the NSW Ministry of Health had removed Pottsville as an Area of Need and it was not classified as a District of Workforce Shortage plus the significant decline in income and doctors’ payments for the practice could be part or all of the reason to affirm the decision. They were invited to make submissions within 14 days.

25. On 28 January 2020 the applicant’s migration agent wrote to the Tribunal. He stated there were two aspects to prove that there was and/or is a need for the position to be filled. He stated that at the time of the employer nomination application Pottsville was in an Area of Need. This point is not disputed.

1. The second aspect he submitted was that ‘at the time of the hearing and now, that there remains a definite need for a medical doctor and, presumably the visa applicant, to fill and remain in the position…the visa applicant has 1,126 registered patients of whom over 300 are aged care or nursing home patients who the visa applicant visits weekly.’

2. The Tribunal will consider this argument. No evidence has been provided of these patient numbers or the visits to the aged care facilities. The nominees’ employment contract states that the ordinary hours of work are 38 hours per week. If the nominee visits 300 aged patients every week in aged care and nursing home facilities this equates to an average consultation period of 7.6 minutes per patient without any time allowed for travel, meal and rest breaks or administrative tasks. It also does not allow any time for the other 826 registered patients. This is implausible and as such the Tribunal gives no weight to the argument regarding patient numbers.

3. The submission went on to state that ‘When the subject nomination and visa application were lodged there were in Pottsville three clinics, of which two were general practice clinics and one a skin care clinic, with eleven medical practitioners. Some five years later, that is to say today, there are three clinics and nine medical practitioners practising in Pottsville, whereas the full time ratio of general practitioners per ratio of 1,000 population remains the same at 1:1,000.’

4. The Tribunal will consider this argument. It is stated that the number of medical practitioners has declined from eleven to nine but the ratio of practitioners has remained the same at one practitioner to every 1,000 head of population. The only way this ratio could remain the same is if the target population also proportionally declined. If so, a reduction in the population is not an argument for the need for the nominated position of general practitioner.

5. It may be that the argument being put forward is that if the Pottsville area was an Area of Need from 2014 to 2017 and the ratio of practitioners has remained unchanged then it should follow that the Pottsville area should still be considered an Area of Need. If this argument were sound then the NSW Ministry of Health would still have the area including Pottsville designated an Area of Need and the Department of Home Affairs would still have it classified as a District of Workforce Shortage but they have not.

6. The Tribunal notes that the letter of support from Medicare local North Coast New South Wales dated 24 June 2014 states, ‘The doctor:population ratio in Pottsville is 1:1,194. This together with a transient population has created difficulties for many of the people in town in accessing services, especially the elderly with chronic health needs.’ This reinforces the argument that the full-time ratio of general practitioners per ratio of 1,000 population has improved from 1:1,194 or 0.84:1,000 in 2014 to 1:1,000 in 2019.

7. The submission went on to say, ‘A letter from Medicare Local Coast NSW dated 23 June 2014 is attached as “D1”. A fact sheet of the Tweed Local Government Area updated at June 2019 is attached as “D2”. A General Population Needs assessment of the North Coast Primary Health Network published in December 2018 is attached as “D2”, “D3”, “D4”, “D5”, “D6” and “D7”. Slide presentations of the Australian Governments North Coast Primary Health Network staff presented in September 2018 are attached as “D8”, “D9”, “D10”, “D11”, “D12” and “D13”.’ No argument is advanced for including these documents; nonetheless, the Tribunal has read and considered the documents.

8. The Tweed Local Government Area fact sheet does show that the General Practitioners Full-Time Equivalent (FTE) at June 2019 is 1.1 per 1,000 head of population in the Tweed and the North Coast. 20.4% of respondents to their survey said it was difficult to access a doctor. The GP FTE for Pottsville is submitted to be 1 per 1,000 which is less than the 1.1 per 1,000 for the Tweed Shire more broadly but it is difficult to draw conclusions from statistics for the Tweed Shire which has a population of 91,370 and Pottsville with a population of 6,704.

9. The NCPHN slide presentation indicates that its intent is to drive improved responses locally to health needs. It covers an area from Port Macquarie in the south to the Gold Coast border and includes 500,000 people. It has published a weighted survey of 3,372 locals. The survey revealed that older people over 65 years were more likely to describe their health as fair or poor and less likely to say their health was excellent. Overall, the survey showed that the majority of older people reported that ‘it was very easy or easy enough for them to see GPs (79%)…at a higher rate compared to younger people’. Much of the rest of the survey dealt with mental health, drug and alcohol services, aged care services and the needs of Aboriginal and Torres Strait Islander people but provided no further insights into the need for the nominated position.

10. A General Population Needs assessment of the North Coast Primary Health Network covers a range of indicators such as income and economic indicators; employment and education; family and domestic violence; interpersonal violence; homelessness and waiting times for social housing. It found that residents had a higher rate of hospitalisation than NSW generally. It examined cancer rates; infectious disease rates; adverse health behaviours such as smoking and physical activity. It produced graphs for the local government areas showing the difficulty in accessing GPs and Tweed had 7.9% finding it ‘very difficult’ and 12% finding it ‘difficult’. Byron Bay, Bellingen and Port Macquarie residents had less difficulty while the remaining nine local government areas had much higher numbers of residents reporting difficulty.

11. The Tribunal found that these fact sheets, slides and needs assessments cover large populations; 500,000 for the NCPHN and 91,370 for the Tweed Shire, and it is not reasonable to draw conclusions from them for a small town of 6,704 included in their respective areas. The Tribunal prefers to rely on the resources of the NSW Ministry of Health and their assessment of Area of Need for general practitioner services rather than generalised surveys.

12. The submission from the applicant’s registered migration agent submits that ‘the visa applicant sees patients at the subject clinic and also visits the aged care and nursing home facilities known as BUPA Benora Point, BUPA Pottsville and Estia Mudgerabah on almost a daily basis. If he was to stop his work in the Pottsville area it would be, in my respectful submission, catastrophic for the Pottsville community, especially for his elderly patients with chronic healthcare needs. It therefore follows in my respectful submission, that the visa applicant is needed in the position he holds.’ The Tribunal has no evidence of this patient workload, no letters of support from patients, medical colleagues, the aged care and nursing home administrators or community leaders. There is no evidence of the income the practice derives from billing these large numbers of patients that it is submitted the nominee attends on a weekly basis.

13. There was no submission made to address the concern that the Central Pottsville Medical Centre has had a decline, from financial years 2018 to 2019, in income of $442,232 and payments to doctors of $319,000. The Tribunal did consider the Business Activity statements but they did not provide insight into this decline in income and earnings for the doctors.

14. The Tribunal finds there is not a need for the position of medical general practitioner, when the NSW Ministry of Health whose role it is to determine Areas of Need for general practitioners found Pottsville was no longer an Area of Need and was not classified as a District of Workforce Shortage. Another reason is the applicants decline in income and payments to doctors from 2018 to 2019.

15. The Tribunal finds that the applicant has not identified a need for the nominator to employ a paid employee to work in the position of medical general practitioner under the nominator’s direct control.

16. Accordingly, the requirement in r.5.19(4)(a) is not met.

17. 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 the 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

18. The Tribunal affirms the decision under review to refuse the nomination.

    De-Anne Kelly
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)     is made in accordance with subregulation (2); and

    (ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)     is actively and lawfully operating a business in Australia; and

    (ii)    directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)     the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)     are provided; or

    (ii)    would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)     both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)    all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).