Blazer Communications Pty Ltd (Migration) - [2022] AATA 3129

Blazer Communications Pty Ltd (Migration) [2022] AATA 3129 (22 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Blazer Communications Pty Ltd
REPRESENTATIVE:  Miss Maggie Chang (MARN: 1275816)
CASE NUMBER:  1917757
HOME AFFAIRS REFERENCE(S):          BCC2018/3840115
MEMBER:Jade Murphy
DATE:22 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 22 August 2022 at 1:58pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Telecommunications Technician – applicant failed to provide the requested information within the prescribed period – applicant has not provided sufficient evidence of its financial capacity to employ the nominated person on a full-time basis–decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, rr 2.72, 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Yang v MIAC [2010] FMCA 890

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 24 June 2019 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 20 June 2018. 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 Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(i)(i) of the Regulations because the delegate was not satisfied the applicant had demonstrated it met the training benchmarks as required by the relevant instrument, and further did not consider it was reasonable to disregard the requirement.
On 26 July 2022, the Tribunal wrote to the applicant and invited it to provide information to the Tribunal pursuant to s.359(2) of the Act. Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(4) and (5), including but not limited to, the criterion that the Department had found was not met. The Tribunal provided a copy of r.5.19(4) and (5) for reference. The Tribunal requested that the information be provided by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blazer Communications Pty Ltd (Migration)

Details

AGLC: Blazer Communications Pty Ltd (Migration) [2022] AATA 3129
Case: [2022] AATA 3129
Decision Date: 22 August 2022

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse the nomination of a Telecommunications Technician under the Temporary Residence Transition stream. The applicant, Blazer Communications Pty Ltd, sought approval of its nomination of an individual for this position.

The Tribunal was required to determine whether the applicant met the general requirements for nomination approval under regulation 5.19(4) and the specific requirements for the Temporary Residence Transition stream under regulation 5.19(5) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the applicant had provided sufficient evidence of its financial capacity to employ the nominated person on a full-time basis for at least two years and whether the terms and conditions of employment met the regulatory requirements.

The Tribunal noted that the only supporting information provided by the applicant was dated between 2015 and 2019, rendering it too old to be given weight. Despite being invited to provide further information under subsection 359(2) of the Act, the applicant failed to respond. Consequently, the Tribunal lacked contemporary information regarding the employment contract, the business's financial capacity, or the employment terms and conditions. The Tribunal was not satisfied that the applicant had demonstrated its financial capacity to pay the nominated salary for at least two years, nor that it met the requirements concerning the nominee's employment terms and conditions. Therefore, the Tribunal found that regulations 5.19(5)(l), (m), and (n) were not met, which in turn meant that regulation 5.19(4)(e) was not satisfied.

The Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the 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(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Future employment – regs 5.19(5)(l), (m), (n) Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13): reg 5.19(7). Secondly, reg 5.19(5)(m) 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(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least two 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. At the time of its decision, the Tribunal notes that the only supporting information the Tribunal has reference to is dated from 2015 to 2019. This information is now at least three years old, so the Tribunal is unable to give it any weight. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in regulation 5.19(5) of the Migration Regulations. The applicant has failed to respond. The Tribunal has no contemporary information before it concerning the current employment contract, financial capacity of the nominating business to pay the nominee's salary, or the terms and conditions of employment. The applicant has not provided sufficient evidence of its financial capacity to employ the nominated person on a full-time basis for at least two years, or the terms and conditions of employment. Based on the evidence before it, the Tribunal is not satisfied that the nominating business has demonstrated its financial capacity to pay the nominated full-time salary for the nominated position of Telecommunications Technician (ANZSCO 342414) for at least two years. The Tribunal is also not satisfied the nominator has demonstrated it meets the requirements regarding the terms and conditions of the nominee’s employment. Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(l), reg 5.19(5)(m) or reg 5.19(5)(n) is met. Accordingly, reg 5.19(4)(e) is not met.

Decision

Reasons for decision

For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.decision The Tribunal affirms the decision under review to refuse the nomination.Jade MurphyMemberAttachment – extracts from the migration regulations 19945.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visaApplication(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:(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(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.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;(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.Temporary Residence Transition stream—additional requirements for approval(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:(a)at the time the application is made, the identified person holds:(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;(b)the occupation:(i)is listed in ANZSCO; and(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and(ii)apply to the identified person in accordance with an instrument made under that subregulation;(d)either:(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or(ii)it is reasonable to disregard any such information;(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:(i)for a total period of at least 3 years (not including any periods of unpaid leave); and(ii)on a full‑time basis, with the employment being undertaken in Australia;(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);(h)the nominator:(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and(ii)is actively and lawfully operating a business in Australia;(i)unless it is reasonable to disregard subparagraphs (i) and (ii)—the nominator:(i)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and(ii)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor;(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;(m)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;(n)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;(o)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;(p)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;(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).Minister may vary certain Temporary Residence Transition stream requirements(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).(8)The Minister may, by legislative instrument, specify:(a)occupations for the purposes of paragraph (5)(c); and(b)persons who are exempt from the operation of that paragraph; and(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(i)the nominator;(ii)the identified person;(iii)the occupation;(iv)the position in which the identified person is to work;(v)the circumstances in which the occupation is undertaken;(vi)the circumstances in which the person is to be employed in the position.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Jade MurphyMemberAttachment – extracts from the migration regulations 19945.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visaApplication(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:(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(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.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;(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.Temporary Residence Transition stream—additional requirements for approval(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:(a)at the time the application is made, the identified person holds:(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;(b)the occupation:(i)is listed in ANZSCO; and(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and(ii)apply to the identified person in accordance with an instrument made under that subregulation;(d)either:(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or(ii)it is reasonable to disregard any such information;(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:(i)for a total period of at least 3 years (not including any periods of unpaid leave); and(ii)on a full‑time basis, with the employment being undertaken in Australia;(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);(h)the nominator:(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and(ii)is actively and lawfully operating a business in Australia;(i)unless it is reasonable to disregard subparagraphs (i) and (ii)—the nominator:(i)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and(ii)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor;(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;(m)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;(n)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;(o)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;(p)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;(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).Minister may vary certain Temporary Residence Transition stream requirements(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).(8)The Minister may, by legislative instrument, specify:(a)occupations for the purposes of paragraph (5)(c); and(b)persons who are exempt from the operation of that paragraph; and(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(i)the nominator;(ii)the identified person;(iii)the occupation;(iv)the position in which the identified person is to work;(v)the circumstances in which the occupation is undertaken;(vi)the circumstances in which the person is to be employed in the position.