BLACKMAN'S BREWERY PTY LTD (Migration)

BLACKMAN'S BREWERY PTY LTD (Migration) [2024] AATA 4043 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  BLACKMAN'S BREWERY PTY LTD
REPRESENTATIVE:  Ms Noeline Smart
CASE NUMBER:  2200513
HOME AFFAIRS REFERENCE(S):          BCC2020/152975
MEMBER:Mary Sheargold
DATE:10 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 October 2024 at 11:32am
CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Chef – no adverse information – genuine need for employment – position associated with the nominated occupation is genuine – labour market testing was undertaken in the specified period – no less favourable terms and condition of employment – applicant lawfully operating a business in Australia – tasks correspond to specified occupation – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 December 2021 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 24 January 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(10)(b) of the Regulations because the nominated position of Chef, ANZSCO 351311, was deemed to be subject to an occupational caveat set out in LIN 19/049.
Mr Renn Blackman, director and shareholder of Blackman’s Brewery Pty Ltd (the applicant) appeared before the Tribunal by MS Teams video link on 18 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Warwick Coleman, the Operations Manager, and Mrs Kanchana Subasinghe-Arachchil, the visa nominee.
The applicant was represented in relation to the review, and she attended the hearing via a separate video link.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 9 May 2024, the Tribunal wrote to the applicant inviting it to provide updated information in relation to its business. A response was requested within 28 days. On 6 June 2024, the representative sent the Tribunal a large zip file containing the following documents in response to the information request:
·a cover letter dated 6 June 2024;
·a copy of the current and historical company extract for Blackman’s Brewery Pty Ltd from the Australian Securities and Investments Commission (ASIC) dated 30 May 2024;
·a company summary from ASIC for the applicant dated 30 May 2024;
·copies of Business Activity Statements for each quarter from June 2022 to December 2023;
·copies of the company tax returns for the applicant for the financial years ending on 30 June 2022 and 2023;
·a copy of the balance sheet and profit and loss statement for the applicant’s business for the financial years ending on 30 June 2022 and 30 June 2023;
·an organisational chart for the applicant’s business;
·a copy of the ANZSCO position description for Chef, 351311;
·a position description for the nominee’s Chef role;
·a copy of the applicant’s employment contract with the nominee dated 30 October 2019;
·photographs of the nominee in the applicant’s workplace;
·market salary survey information for the nominated position; and
·a copy of the receipt showing payment of the SAF levy at the time of application on 24 January 2020.
In reaching its findings, the Tribunal has reviewed and considered all of these documents, as well as the documents in the Departmental file.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
The Tribunal has reviewed the documentation in the Department’s file and is satisfied that the application was made on the approved internet form. Within that form, the applicant has provided the relevant s.245AR(1) certification, the position has been identified, a person and an occupation relating to the position have been identified, and the visa subclass and stream to which the nomination relates have been identified. The Department’s letter to the applicant dated 24 January 2020 confirms that the application fee has been paid.
The application identified the annual turnover for the business to be approximately $1,785,594.00. As demonstrated by the receipt for payment provided by the applicant to the Tribunal, on 24 January 2020, the applicant paid $3,540 accompanying its application form. Per r.5.37 of the Regulations, $540 of that represents the application fee. The remaining $3,000 represents the Skilling Australians Fund levy for nominations for ENS visas, being the one off payment amount for businesses with an annual turnover of less than $10,000,000.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with it.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Victoria, the relevant occupation is Chef, ANZSCO 351311, and the date of application is 24 January 2020.
The Tribunal is not aware of any mandatory licensing, registration, or professional memberships required for persons to work as Chefs in Victoria.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or Victoria relating to employment.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
As set out above, the Tribunal is satisfied that the applicant paid the required training contribution charge at the time the application was made. Therefore, no training contribution debts have accrued.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant has provided the Tribunal with its current ASIC records, recent BAS, financial statements, photographs, oral evidence, and other information relating to its business operations. Based on the documentation before it, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
The Tribunal has considered the employment contract between the applicant and the nominee dated 30 October 2019 and notes it sets out the nominee’s place of work as Blackman’s Brewery, 26 Bell Street, Torquay, Victoria 3228. The Tribunal notes that this is the address of the applicant’s restaurant business. Based on the evidence available at review, the Tribunal is satisfied that the nominated position of Chef is a permanent, full time position within the applicant’s business and does not involve any on-hiring to any unrelated business
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal is satisfied that the nomination application identified a need for the nominee to be employed as a Chef within the applicant’s restaurant business. Based on the evidence available at review, the Tribunal is satisfied that, at the time of its decision, the applicant has a genuine need not only for the nominated position but for many other front of house and back of house positions across its regional Victorian operating sites.
Mr Blackman and Mr Coleman emphasised that the nominee is an integral part of the ongoing success of the Torquay restaurant site and that the business would be severely impacted if this nomination was not approved and her visa not granted. The business is growing, thriving, and has expanded with more than double the turnover it had at the time the application was made, even in light of the Covid-19 pandemic and the devastating impact that had on the hospitality sector in Victoria.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The employment contract states that the nominee will be employed on a full time basis for at least 38 hours per week plus overtime where required. The initial period of employment was set at 12 months, and on completion of that period, the employment term is ongoing. Both Mr Blackman and Mr Coleman confirmed during the hearing that the position is available to the nominee on a permanent and ongoing basis noting she has been in the role now for nearly 5 years. Therefore, the Tribunal is satisfied that the requirements in rr 5.19(9)(e) and(f) are met.
To determine the annual market salary rate, the applicant has provided evidence of the Restaurant Industry Award MA000019 and is satisfied that the nominee’s current salary of $75,000.00 per annum plus superannuation exceeds the Award rate. The applicant has provided copies of recent BAS and its bank statements to show the significant quarterly turnover within the business. The applicant recorded trading income of $3,670,429.44 in the period from 31 May 2023 to 31 May 2024 with a total wage bill exceeding $1,650,000.00. Based on the evidence provided, the Tribunal is satisfied that the applicant’s business has the capacity to pay the applicant at the annual market salary rate for at least 2 years.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
Section 5 in IMMI 18/033 specifies the annual earnings for the purposes of r.2.72(15)(b) to be $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
As set out above, the applicant has provided evidence with its application supporting the method used to determine the annual market salary rate for the nominated position of Chef, being a reference to the applicant’s current Chef employed within the business. The applicant is offering the nominee a position on terms identical to that offered to its Australian resident chef, being $75,000 per annum for a standard 38 hour week, plus paid overtime. For these reasons the requirements of reg 2.72(15)(c) are met.
The TSMIT is $53,900, so the salary of $75,000 per annum plus paid overtime that has been offered to the nominee exceeds this amount. For these reasons the requirements of reg 2.72(15)(d) are met.
Again, as set out above, the Tribunal is satisfied that this remuneration arrangement gives to the applicant a salary in excess of the minimum required under the relevant modern award. For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee has not been offered any non-monetary benefits as part of the employment contract. Therefore, the proposed remuneration represents a cash figure. Therefore, the annual earnings will still be above the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
The Tribunal is satisfied that there is no information before Immigration to indicate that the annual market salary rate for the nominated position is inconsistent with Australian labour market conditions relevant to the occupation of Chef. For these reasons the requirements of reg 2.72(15)(g) are met.

Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Tribunal has considered the terms and conditions of the nominee’s employment set out in the employment contract, and notes that the nominee’s employment conditions appear to accord with the requirements set out in the National Employment Standards.
Therefore, based on the evidence before it, the Tribunal is satisfied that the nominee’s terms and conditions of employment 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.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 186 visa.
Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument. In this case, the relevant instrument is LIN 19/049.
The applicant has nominated the position of Chef, ANZSCO 351311. The Tribunal notes that this occupation appears in the Medium and Long-term Strategic Skills List set out in section 7 of LIN 19/049. ANZSCO provides the following descriptor for the role of Chef:
·planning menus, estimating food and labour costs, and ordering food supplies;
·monitoring quality of dishes at all stages of preparation and presentation;
·discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff;
·demonstrating techniques and advising on cooking procedures;
·preparing and cooking food;
·explaining and enforcing hygiene regulations;
·may select and train staff; and
·may freeze and preserve foods.
The applicant has provided submissions to the Department that the nominee will perform the following tasks:
·assist head chef in planning of menu;
·developing recipes using seasonal produce;
·budgeting - estimating food and labour costs;
·implementing staff rosters;
·supervise the activities of cooks and other kitchen staff;
·carry out complex cooking as per menu and customer requirements;
·assist head chef in determining staffing requirements;
·assist in training staff as required;
·ensure compliance with all regulatory bodies.
Although these tasks do not mirror the tasks set out in ANZSCO, the Tribunal is satisfied that they correspond to those tasks.
Further, according to the table in LIN 19/049, the occupation of Chef is subject to applicability conditions 7 and 8, which exclude positions that are involved in mass production in a factory setting and those in a limited service restaurant respectively. In this case, the delegate found that the restaurant at Blackman’s Brewery’s Torquay site was a limited service restaurant because it had a short menu of simple items that appeared to be offered predominantly to accompany beverages sold at the bar.
At the hearing, both Mr Blackman and Mr Coleman, as well as the nominee, emphasised that this simply is not the case. Every element of every dish served at the Torquay restaurant is prepared in house from scratch. This includes sourdough pizza dough that takes in excess of 48 hours to make, slow cooked meats, barbeque sauce, guacamole, tortillas, and every detail required to serve the uniquely Victorian hospitality market.
The applicant has provided a significant amount of supporting evidence, including layouts and floor plans for its restaurant, photographs of the full scale industrial kitchen, and evidence regarding increased seating in the restaurant to satisfy the Tribunal that neither of these applicability conditions affects the nominated position.
It is clear that a restaurant of the scope and calibre of that offered at Blackman’s Brewery’s Torquay site is not a limited service restaurant. For completeness, it is also clear that the position is not based in a mass production factory setting.
Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
Mary Sheargold
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2024] AATA 4043

10 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal