B R Brothers Pty Ltd (Migration)

[2021] AATA 3212

B R Brothers Pty Ltd (Migration) [2021] AATA 3212 (28 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  B R Brothers Pty Ltd

CASE NUMBER:  1830195

HOME AFFAIRS REFERENCE(S):          BCC2017/654608

MEMBER:Mary Sheargold

DATE:28 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 July 2021 at 6:03pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cook – genuine need for the nominator to employ a paid employee –  position located in regional Australia – actively and lawfully operating a business in Australia – no adverse information known to Immigration – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 359
Migration Regulations 1994, rr 1.13, 5.19

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 Home Affairs on 26 September 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 17 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)(i) of the Regulations because it did not demonstrate that it had the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.

5. The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 set aside the decision under review and substitute a decision approving 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.

9. On 15 December 2020, the applicant’s representative wrote to the Tribunal enclosing detailed written submission and documentary evidence in support of the application.  The Tribunal received the following documents:

   a.detailed written submissions addressing each of the criteria for approval;

   b.a copy of the lease agreement for business premises at Warrnambool;

   c.copies of ASIC company registration information for Portland operations;

   d.company registration documentation for the applicant;

   e.an employment contract for the nominee;

   f.detailed financial statements for the financial year ending on 30 June 2020;

   g.BAS for the first quarter of 2021 financial year;

   h.a copy of the restaurant’s menu;

   i.PAYG summaries for 2019 and 2020 as issued for the nominee;

   j.superannuation statements for 2018 to 2020 for the nominee;

   k.letter of support from Mr Maulik Shah, accountant to the applicant;

   l.salary increase letter for the nominee;

   m.an organisational chart dated December 2020;

   n.Job Outlook information relating to the position of ‘Cook’;

   o.bundle of relevant job advertisements from the Seek website;

   p.photographs of the restaurant operations;

   q.advertisements run by the Applicant in relation to the nominated position;

   r.Regional Certifying Body approval;

   ·position description for the nominated occupation; and

   ·ANZSCO entry for the position of ‘Cook’.

10. On 18 June 2021, pursuant to s.359(2) of the Act, the Tribunal wrote to the applicant requesting updated information in relation to this application.  On 2 July 2021, the applicant’s authorised representative provided further written submissions and recent financial information in support of the application.

11. The Tribunal has considered all of the documentary evidence received in reaching its findings.

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

12. 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.

13. The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form.  Consistent with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia.  The applicant has identified a need for a Cook at its restaurant business located at 132 Koroit Street, Warrnambool, Victoria, 3280, under its direct control.

14. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

15. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

16. The Tribunal has reviewed the ASIC company documents provided by the applicant in relation to its business, BAS, detailed profit and loss statement for the financial year ending on 30 June 2020, preliminary financial information for the applicant’s business for the financial year ending on 30 June 2021, a lease documents for the applicant’s business, and photographs of the applicant’s business operations.

17. Based on the documents provided by the applicant to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

18. 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. 

19. The Tribunal has considered the employment contract between the applicant and the nominee dated 24 January 2017 (the employment contract).  The employment contract states that the nominee will be employed by the applicant to work in the position of Cook on a full-time basis and that he will be required to perform his duties at Singh Indian Curry House, 132 Koroit Street, Warrnambool, Victoria 3280.  The Tribunal has also considered the photographic evidence of the nominee working at Singh Indian Curry House.

20. Based on the evidence before it, the Tribunal is satisfied that the nominated position of Cook is a permanent full-time position within the applicant’s business and that it does not involve the nominee being on-hired to any unrelated business. 

21. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

22. 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.

23. In assessing this criterion, the Tribunal has considered the documents provided to the Tribunal, such as the employment contract, position description, updated salary information for the nominee, organisational chart, financial statements for the applicant’s business, and recent lodged BAS for the applicant’s business.

24. The employment contract states that the position is a full-time and ongoing position, for a “standard working week of 38 hours plus reasonable overtime.”  Therefore, the Tribunal finds that the terms and conditions of employment are full time and for at least 2 years, and do not expressly exclude the possibility of an extension.  The employment contract states that the nominee will be required to work a minimum of 38 hours per week.  The nominee’s salary increase letter dated 14 August 2020 states that the nominee’s salary will be $58,000 per annum, plus superannuation. 

25. The Tribunal has considered the representative’s submissions in relation to the financial position of the applicant’s business, noting the supporting evidence provided in the organisational chart for the applicant’s business as well as the BAS and the financial statements provided.  The Tribunal notes that the nominee has worked for the applicant for at least 38 hours per week in the previous 2 financial years, and that his salary payments are reflected in the financial statements provided as well as the recent lodged BAS.  The Tribunal notes that the applicant’s business has grown significantly since the time the application was made, with major increases to turnover and net equity within the business.  The Tribunal notes that this is the case even in challenging circumstances due to the Covid-19 pandemic and its impact on regional Victorian communities.

26. Having considered all the evidence before it, the Tribunal is satisfied that the nominee will be employed in the position of Cook on a full-time, permanent and ongoing basis for at least 2 years on terms that do not expressly exclude the possibility of an extension. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

27. 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.

28. The salary increase letter for the nominee indicates that his base salary is $58,000 per annum, plus superannuation.  The employment contract states that the base salary covers the standard 38 hour working week, and that additional hours worked will be paid at overtime rates in accordance with the relevant requirements.

29. The applicant’s representative provided a body of evidence regarding the market salary rate for a Cook working in Victoria.  Data provided from Job Outlook as well as a survey of job advertisements confirm that the nominee’s salary is generally above average.  The representative notes that this reflects his years of experience working as a Cook. 

30. In addition to this evidence, the Tribunal has considered the Restaurant Industry Award 2020 (MA000119) (the Award) and notes that the highest grade of Cook covered is a Level 6 – Cook Grade 5 (Tradesperson).  Clause 18 of the Award states that the minimum weekly pay for a full-time employee at that classification is $957.60.  The Tribunal notes that this equates to an annual salary of $49,795.20.  The nominee’s base salary of $58,000 per annum is clearly in excess of this minimum pay rate.

31. The Tribunal has considered the terms set out in the contract of employment and the position description, and notes that the nominee’s salary is set at $45,635.20 per annum plus superannuation.  The contract of employment states that superannuation will be paid at a rate of 9.5% of the nominee’s salary.  The Tribunal notes that the leave and termination provisions are compliant with the applicant’s obligations under the relevant workplace relations legislation.

32. The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave, notice, and termination are in accordance with the obligations in the Award and the minimum standards set out in the National Employment Standards and relevant workplace relations legislation.

33. Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

34. Accordingly, the requirement in r.5.19(4)(e) is met.

    No adverse information known to Immigration: r.5.19(4)(f)

35. 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. 

36. There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant or any of its directors.

37. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

38. 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.

39. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia.

40. 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)

41. Regulation 5.19(4)(h) contains a number of alternative requirements. As noted above, the applicant’s application was made under the RSMS Direct Entry stream. Accordingly, the Tribunal has assessed the application against the criteria in r.5.19(4)(h)(ii) of the Regulations, as at the time of lodgement of the nomination application, which required that:

    ·the position and nominator’s business is located in regional Australia;

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

    ·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;

    ·the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing; and

    ·a regional certifying body has advised the Minister about certain matters relating to the position.

    Position and nominator’s business is located in regional Australia: r.5.19(4)(h)(ii)(A) and (E)

42. The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that “regional Australia” is defined by legislative instrument. The Tribunal has considered the current legislative instrument, Migration (IMMI 18/037: Regional Certifying Bodies and Regional Postcodes) Instrument 2018 (IMMI 18/037), that specifies the postcodes classed as “regional Australia” in accordance with r.5.19(16). However, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018.[1]  The Tribunal notes that IMMI 18/037 repealed the previous instrument, Migration (IMMI 17/059: Regional Certifying Bodies and Regional Postcodes) Instrument 2017 (IMMI 17/059).[2] 

    [1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”

    [2] See IMMI 18/037, Schedule 4.

43. Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the most recent legislative instrument that remains in force proximate to the time the applicant lodged the nomination application.  That legislative instrument is Regional Certifying Bodies and Regional Postcodes 2016/045 (IMMI 16/045). Schedule B of IMMI 16/045 states that postcodes 3211 to 3334 form part of “regional Australia”.

44. Based on the evidence before it, the Tribunal is satisfied that the applicant’s business is located at 132 Koroit Street, Warrnambool, Victoria 3280, and that the nominee is currently working in the nominated position at the applicant’s business in this location.

45. The Tribunal is therefore satisfied that the position and the business operated by the applicant are both located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)

46. The Tribunal has considered the representative’s submissions and the organisational chart for the applicant’s business and notes that the applicant operates two restaurant businesses in western Victoria (one in Warrnambool and one in Portland).  The organisational chart for the applicant’s business sets out the nominated position of Cook reporting directly to the company director, Mr Sukhdeep Singh Mutti, who works at the Portland restaurant.  The Tribunal notes the representative’s submission that the nominee is one of 2 cooks responsible for operating the Warrnambool restaurant on a day to day basis.  The Tribunal notes that the Warrnambool restaurant is a significant operation with 40 seats in the dining room and a “popular” takeaway service.  The menu provided for the restaurant indicates that it serves a wide range of dishes, requiring multiple cooks to work in the kitchen.

47. Based on all the evidence before it, the Tribunal is satisfied that the applicant has demonstrated a genuine need for it to employ a paid employee to work in the position of Nurseryperson under its direct control.

    Position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place: r.5.19(4)(h)(ii)(C)

48. The applicant has provided evidence of its job advertisement for the position of “Cook” placed in the Warrnambool Standard newspaper in December 2016.  The representative submits that the only application received from a suitably skilled and experienced applicant was that of the nominee.  There is no evidence that any Australian citizen or permanent resident applied for the position.  The Tribunal notes that the applicant received only 1 application each for the other 2 cook positions it has sought to fill in recent years, and that these employees too are the subject of applications for Subclass 187 visas.

49. Based on the evidence provided, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the applicant’s business in Warrnambool, Victoria.

    Tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing: r.5.19(4)(h)(ii)(D)

50. The applicable instrument specified for this purpose is IMMI 17/058.  Clause 7 of the Instrument specified that as well as the occupation being listed in Schedule 1 of the Instrument, it must also be listed in ANZSCO and have an ANZSCO skill level of one, two or three.

1. The application is for a Cook, ANZSCO 351411, with a skill level of 3.  This occupation is listed in Schedule 1 of the Instrument.  The tasks and skill level for the ANZSCO descriptor for Cook, ANZSCO 351411 are set out below:

   Tasks:

   ·     examining foodstuffs to ensure quality

   ·     regulating temperatures of ovens, grills and other cooking equipment

   ·     preparing and cooking food

   ·     seasoning food during cooking

   ·     portioning food, placing it on plates, and adding gravies, sauces and garnishes

   ·     storing food in temperature controlled facilities

   ·     preparing food to meet special dietary requirements

   ·     may plan menus and estimate food requirements

   ·     may train other kitchen staff and apprentices.

   Skill Level:        

   ·     ANZSCO Skill Level 3.  Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below. 

   ·     In Australia: AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3).

   ·     At least three years of relevant experience may substitute for the formal qualifications listed above.  In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

2. The job description, provided by the applicant’s representative in December 2020, lists the duties of the Cook as:

   •set up workstations with all needed ingredients and cooking equipment;

   •prepare ingredients to use in cooking (chopping and peeling vegetables, cutting meat etc);

   •prepare and cook food according to the menu;

   •proper seasoning of food during cooking according to restaurant standards;

   •plating and garnishing food prior to service;

   •preparing food to meet special dietary requirements;

   •plan menus with management;

   •estimate product requirement for following day;

   •coordinate with kitchen staff, supervise staff and train staff if necessary;

   •examining the quality of food on a daily basis;

   •proper check and maintenance of all kitchen equipment and regular audits of temperature controlled facilities;

   •regulating temperatures on ovens, grills and other cooking equipment in the kitchen; and

   •reporting to the owner.

3. The Tribunal has considered whether the duties, responsibilities and skills set out in the job description correspond to the tasks of a Cook as set out in ANZSCO 351411.  While the wording in the job description does not mirror the wording in ANZSCO 351411, the Tribunal is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of an occupation at ANZSCO Skill Level 3.

4. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.

   Regional certifying body advice about certain matters relating to the position: r.5.19(4)(h)(ii)(F)

5. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 10 February 2017 provided by the applicant, and notes that it was completed by a representative of Warrnambool City Council. The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and notes that IMMI 18/037 also repealed the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 17/059. However, IMMI 16/045, the relevant legislative instrument immediately pre-dating IMMI 17/059, remains in force, and as such, the Tribunal has considered this instrument in relation to this application. Warrnambool City Council is listed as a Regional Certifying Body (RCB) in Schedule A of IMMI 16/045.[3]

   [3] For completeness, the Tribunal notes that Swan Hill Rural City Council continues to be listed as an approved RCB in Victoria under Schedule 1 of IMMI 18/037. However, IMMI 18/037 only applies to nomination applications lodged on or after 18 March 2018. Swan Hill Rural City Council was also listed as an approved RCB in Victoria under Schedule 1 of IMMI 17/059.

6. On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 10 February 2017 provided, the Tribunal is satisfied that the RCB has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The RCB stated that:

   ·     there is a need for a paid employee in the nominated position within the business activities of the nominating employer;

   ·     the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and

   ·     the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.

7. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice.

8. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

   Summary

9. It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.

10. 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

11. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Mary Sheargold
    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).