B & E Knight Pty Ltd & A J Knight Pty Ltd (Migration)

B & E Knight Pty Ltd & A J Knight Pty Ltd (Migration) [2021] AATA 3207 (26 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  B & E Knight Pty Ltd & A J Knight Pty Ltd
CASE NUMBER:  1916460
HOME AFFAIRS REFERENCE(S):          BCC2018/275594
MEMBER:Karen McNamara
DATE:26 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 July 2021 at 11:44am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Café or Restaurant Manager – applicant is suitably qualified for the position – genuine need for the nominator to employ a paid employee – actively and lawfully operating a business in Australia – no less favourable terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 June 2019 to reject the application by B & E Knight Pty Ltd & A J Knight Pty Ltd (the applicant) 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 17 January 2018. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the application did not demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation that is specified in the relevant instrument for sub- subparagraph 5.19(4)(h)(ii)(D).
The applicant applied to the Tribunal on 24 June 2019, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 20 July 2021, the applicant represented by Ms Alexia Knight (referred to below as the applicant) appeared before the Tribunal via video, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ravish Dhammi (the nominee) who appeared via telephone, in the related matter for the subclass 187 visa (AAT Case file 1920188). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and nominee (who attended via telephone). The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video and telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity 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.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
The applicant (B & E Knight Pty Ltd & A J Knight Pty Ltd) are trustees for separate family trusts that own and operate roadhouses, hotels and motels in remote western Queensland. The applicant’s business interests include the Camooweal, Julia Creek and Cloncurry Roadhouses, the Julia Creek Hotel and the Mount Isa Service Station.
On 17 January 2018, the applicant lodged an application for an employer nomination approval for the position of Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $54,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r.5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by the applicant. In support of the need for the position the applicant has provided evidence in the form of references from the respective Federal and State Members of Parliament, representatives submission dated 21 May 2021, genuine position statement (undated) and oral evidence provided at the hearing on 20 July 2021.
The applicant told the Tribunal the need to employ a paid employee to work in the nominated position is essential to the operational and business needs of the applicant’s restaurants located at the Camooweal Roadhouse and Julia Creek Hotel.
Accordingly, the Tribunal is satisfied the requirement in r5.19(4)(a)(ii) is met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal accepts on the evidence before it that the applicant owns and operates a roadhouse restaurant and hotel, respectively located at Camooweal and Julia Creek in far north west outback Queensland. Based on the material provided to the Tribunal, including; financial statements, BAS returns, ASIC details, payroll advice, and business bank statements the Tribunal is satisfied the applicant is actively and lawfully operating a business which includes restaurant facilities, in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
In considering whether the business has the financial capacity to pay the nominee, the nominated full time salary of $54,000 per annum for at least two years, the Tribunal has taken into consideration evidence before it including the applicant’s most recent financial statements, documents submitted to the ATO and information which show the applicant has met payroll and operating costs.
The Tribunal has also taken into consideration evidence before the Tribunal to support that the nominee has been employed by the applicant in the nominated position since May 2018. The nominee’s bank account statements and PAYG’s support the nominee has received regular salary payments in excess of the nominated salary amount and employer superannuation contributions have been paid.
The Tribunal notes that the applicant’s financial statements and partnership tax return show that the business has reported substantial revenue with proportionally aligned profit. In 2019/20 financial year the business reported revenue in excess of $4.3 million, net equity of $698,043 and cash at bank exceeding $400,000. The Tribunal is satisfied that the financial evidence before it, supports that the applicant’s revenue can sustain the ongoing employment of the nominee.
At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on the business. The applicant told the Tribunal that specific to the restaurant business, revenue has increased due to the increase in patronage from emergency service and defence personnel manning the Queensland and Northern Territory border. The increase of domestic travellers has also seen in a positive impact on the business.
The Tribunal has afforded consideration to the financial evidence before it and is satisfied the applicant has the financial capacity to pay the nominee a full-time salary of $54,000 per annum and maintain the employment of the nominee on a full-time basis for two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the most recent contract of employment dated 12 April 2021. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is ongoing. The contract stipulates the base salary is $58,000 per annum exclusive of superannuation with hours of work 38 hours per week (plus additional hours as reasonably required by the employer). There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment contract dated 12 April 2021 and other 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. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The contract of employment dated 12 April 2021 sets out the terms and conditions of employment and indicates that the nominee’s salary will be $58,000 per annum and hours of work 38 hours per week (plus additional hours as reasonably required by the employer). The nominee’s leave entitlements include annual, long service, personal and carers leave in addition to compassionate, parental and community leave in accordance with the National Employment Standards and Fair Work Act 2009 (Cth).
The Tribunal has received copies of the nominee’s PAYG’s, bank statements and payslips confirming that the nominee has been paid by the applicant the nominated salary amount of $54,000 per annum. Superannuation information provided to the Tribunal, support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the 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.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Camooweal & Julia Creek, North West Queensland, postcodes 4828 and 4823 which are postcodes specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) and for the tasks of that position.
In considering whether there is a genuine need for the nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written statements and the oral evidence received at the hearing by Ms Alexia Knight.
The applicant gave evidence at the hearing that the position is key to the operational requirements of the business, in so far as the position of Restaurant Manager is consistent with the nature of the applicant’s business interests at Camooweal and Julia Creek. The applicant told the Tribunal that they purchased the Julia Creek Hotel in early 2020 which is 470 kms distance from Camooweal.
The nominated position is one of two nominated positions for the position of Restaurant Manager. The genuine need to employ the nominee in the nominated position has arisen as a result of the difficulties the applicant has had in filling the position on a full-time basis with reliable staff and being able to cover both locations. The applicant told the Tribunal that due to the remoteness of the roadhouse and hotel, the business has struggled to fill vacancies due to a shortage of suitably qualified and experienced applicants willing to work in outback Australia.
The applicant told the Tribunal that the need for the two positions, is to cover the operational requirements of the business in so far as the hours that the roadhouse business operates and the need for a Restaurant Manager to manage the Julia Creek Hotel restaurant. The organisation structure has always included two Restaurant Managers and following the resignation of a previous Restaurant Manager, Ms Knight and her brother spent one week at each location managing the business including the restaurants. The owners alternated on a two-weekly fly in fly out (FIFO) basis, as both of them reside in country regions of NSW. Due to health concerns Ms Knight is no longer in a position to manage the business on a FIFO basis and the owners have become more reliant upon onsite managers to manage their business interests including the restaurants at Camooweal and Julia Creek. The responsibilities of both Restaurant Managers are confined to the management of the respective restaurants only.
The Tribunal is satisfied on the evidence presented by the applicant that there is a genuine need for a paid employee to work in the position of Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) under the nominator’s control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position. This evidence included references from the respective Federal and State Parliamentary Members who attested to the regions skill shortages and provided their support to this nomination application.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally, and advice dated 12 April 2020 from MLKA Hospitality Recruitment attesting to local recruitment attempts. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations. The delegate formed the view that the tasks to be performed in the position did not correspond to the tasks of a Café or Restaurant Manager as specified by the Minister in an instrument in writing for sub-subparagraph 5.19(4)(h)(ii)(D).

The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the tasks and duties of the position.
The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application. The Tribunal has had the opportunity to discuss with the applicant and the nominee at the hearing, the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO.
For nominations made on or after 1 July 2015, regulation 5.19(4)(h)(ii)(D) requires the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument.[1] This requires a qualitative analysis of whether the position is what it really purports to be in a practical sense, which is more than a line by line comparison of the tasks for example in the employment contract and the tasks of ANZSCO description.[2] It is a question of fact and the weight the decision maker gives to various considerations and evidence is a matter for it.[3]
[1] reg 5.19(4)(h)(ii)(D) as amended by SLI 2015, No 103.
[2] Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758 at [34]–[37]. The Court accepted that the qualitative analysis required for reg 2.72(10)(f) (whether the position associated with the nominated occupation is genuine) endorsed in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 was applicable to reg 5.19(4)(h)(ii)(D) assessment of whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument.
[3] In Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5, the Court found that it was open for the Tribunal to consider not only the documentary material but the oral evidence at hearing concerning the nominee’s role, and the Tribunal was not bound to treat the description in the contract as definitive but was open to take preference for one evidence over another (at [66]-[69]).
In their decision of 11 June 2019, the delegate noted the following;
‘…….It is noted that the duties of the restaurant manager have not included ‘planning and organising special functions’ in either the employment contract or position description documents.
ANZSCO indicates that Café or Restaurant Managers organise and control the operations of cafes, restaurants and related establishment to provide dining and catering services.
Information in the nominee’s employment contract states the nominated position will report
to the ‘manager’. The nominated position will also ‘Refer any complaints, complements and
comments to the manager’, ‘notify the manager of all customer requests’ and ‘carry out any
other duties’ when requested by the manager. The business organisation chart states there
are two restaurant managers.
This would indicate the nominated position does not organise and control the business as
per ANZSCO and instead the business is organised and controlled by the ‘manager’.
The employment contract also states the skills required include ‘to prepare and cook a full
range of meals’ and ‘Cleaning skills including washing up and general kitchen duties’. It is
reasonable to consider that if the nominated position requires these skills then they would
be duties the nominated position is expected to perform. The nominator has not stated why
someone in the position of a full-time Restaurant Manager would be required to cook and/
or clean. Nor has the nominator stated how much of the restaurant manager’s time would be
required to perform these tasks.
I have taken into account the information submitted with the application and have taken into
account the RCB’s advice. However, considering the evidence overall, I am of the view that
the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Café or
Restaurant Manager rather they are more closely aligned with those of an ANZSCO Skill
Level 4 retail supervisory position.
I accept that the business may need a person to help manage the day to day running of
the restaurant but consider that this position will not be responsible for organising and controlling all business operations.’
The Tribunal discussed with the applicant the delegate’s comments and reason for the nomination refusal. The applicant told the Tribunal that operating a food services facility in outback Australia has its unique challenges one being the delivery of supplies on a weekly basis or delays to the delivery, influences the menu and due to staff shortages the position is required to be flexible and provide assistance in other aspects of the business when required. The increase of Police and Defence personnel manning the QLD/NT border has also resulted in an increase in the need to plan and organise special functions in so far as providing meals to accommodate group requirements.
The Tribunal has afforded careful consideration to the evidence before it, making the observation that management and operational requirements for a roadhouse dining facility located in remote Australia, undoubtably varies from those of a restaurant located in an Australian metropolis. The Tribunal has discussed with the applicant and nominee at the hearing the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the applicant’s business and operational requirements and how the tasks of a Restaurant Manager (as undertaken in the nominated position) are relevant to meeting these requirements.
Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Café or Restaurant Manager. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
Department records show that the nominee whilst studying in Australia, attained a Diploma of Management, Diploma of Hospitality and Certificate III in Commercial Cookery. The nominee has been employed by the applicant in the position of Restaurant Manager since May 2018.
Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that he is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.
The Tribunal notes the advice dated 10 December 2018 from the relevant RCB, Commerce North West, indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2021] AATA 3207

26 July 2021

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