Broad Petroleum Pty Ltd (Migration)

Broad Petroleum Pty Ltd (Migration) [2020] AATA 3942 (3 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Broad Petroleum Pty Ltd
CASE NUMBER:  1923827
DIBP REFERENCE(S):  BCC2018/714176
MEMBER:Phoebe Dunn
DATE:3 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 August 2020 at 1:40pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager (General) – genuine need of position – business located in regional Australia – competitor and market analysis – growth strategies – two full-time Retail Managers working for the business – tasks and duties of nominated position – alignment with ANZSCO description – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), 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 Immigration on 12 August 2019 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).
The applicant applied for approval on 12 February 2018. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination of Mr Baldeep Singh (the nominee) in the nominated position of Retail Manager (General) (ANZSCO 142111), seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed in the nominated position corresponded to the tasks of the occupation of Retail Manager (General) (ANZSCO 142111).
The applicant, represented by Mr Ritesh Chandan, a Director of the nominating business, appeared before the Tribunal by telephone on 17 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Baldeep Singh.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered lawyer and migration agent, Ms Nina Merlino of Carina Ford & Associates.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
At the hearing of this matter, Mr Chandan gave detailed oral evidence regarding the nature of the business and the nominated position. Detailed written submissions and supporting documentation were received in advance of the hearing. Further evidence and documentation was requested at the hearing, which was provided within the stipulated timeframe.
The business is a mixed business located in regional Victoria, comprising a fuel station, convenience store and a dine in and takeaway café with meal options. Mr Chandan and a silent partner purchased the business in May 2016 as a going concern. Initially Mr Chandan worked full-time in the business as the General Manager, requiring him to drive over 100km from his home in Melbourne each day. As the business operates from 5.00am to 10.00pm from Monday to Friday and from 7.00am until 10.00pm on weekends, Mr Chandan stated in oral evidence at the hearing that it was not possible for him to be physically present for all these hours. Mr Chandan stated that he required reliable and experienced people to help run the business, so that he could explore other opportunities and spend time with his family. Mr Chandan stated that without this support, the business would suffer.
Mr Chandan stated that in July 2016 he and his family were the victims of a traumatic armed home invasion lasting several hours. He stated that his wife wanted him at home and did not want to be alone in the evenings or before sunrise. Mr Chandan stated that due to the distance of the business from his home he needed to leave before 5.00am and was often home very late, which became increasingly difficult and unworkable. Mr Chandan stated that in November 2017 the business was burgled, with the safe and other merchandise being stolen. Mr Chandan stated that the police suspected that the perpetrators were assisted by an employee, cementing the need for the nominated position.
Mr Chandan stated that he has twice advertised the nominated position, first in relation to the other full-time Retail Manager and second in relation to the nominee’s position. Mr Chandan stated that at that time the other full-time Retail Manager was working the morning shift and that he was still covering the afternoon shift but was not able to stay until 10.00pm. He stated that he had seen the improvements in sales and profitability since the other Retail Manager had commenced and determined that he required two full-time Retail Managers, noting that all other employees were either part-time or casual. Mr Chandan advertised for the position and the nominee applied. Mr Chandan stated that he interviewed a number of other candidates for the role, but none had the requisite level of experience and qualifications, noting that it is extremely difficult to find locally based people willing to commit to full-time work. Mr Chandan stated that the applicant had relevant qualifications, including a Master of Business Administration and knew the business well.
Mr Chandan stated that the nominee started working for the business in July 2016, initially as a part-time kitchen assistant and console operator and then as a store supervisor, before being promoted to the full-time position of Retail Manager in 20 November 2017, enabling Mr Chandan to reduce his travel and spend time with his family who reside in Melbourne. Mr Chandan stated that he now travels to the business approximately once a week, sometimes more, sometimes less, depending on business requirements. Mr Chandan described the transformative impact the nominee has had on the business profitability and turnover since commencing at the business in the nominated position.
Mr Chandan stated that he currently employs six part-time console operators (two per shift), two part-time supervisors and two full-time Retail Managers, one being the nominee. Mr Chandan noted that there had been an impact on sales due to the COVID-19 pandemic and they had reduced the opening hours and shift hours for employees for a short period, but that they were now back to full operations.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
The application identifies the nominee, Mr Baldeep Singh, in the nominated position of Retail Manager (General) 142111. The Tribunal has considered the documentation before it and is satisfied that the application was made on the approved form and was accompanied by the relevant s.245AR(1) certification and application fee.
The Tribunal has also considered written and oral evidence about the need to employ the nominee in the nominated position. The Tribunal notes, in particular, Mr Chandan’s written submissions and oral evidence at the hearing regarding his personal circumstances and the location of the business relative to Mr Chandan’s residence. The Tribunal has also had regard to the nature of the business, being a mixed business located in regional Victoria, comprising a fuel station, convenience store and a dine in and take-away café with meal options.
The Tribunal has carefully considered the evidence before it and is satisfied there is a need for a paid employee in the nominated position of Retail Manager under the applicant’s direct control.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant has provided to the Tribunal an ASIC current and historical extract, recent financial statements for FY2016 to FY2018, draft financial statements for FY2019, Company Tax Return for 2018 and business activity statements (BAS) for July 2018 to March 2020. The applicant has also provided a copy of the current Workcover Certificate of Currency and current lease for the business premises. A letter from the applicant’s accountant dated 16 June 2020 states that the business is trading profitably and can pay all its tax liabilities and is of sound financial capacity.
Having regard to this documentation, 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)
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.
The Tribunal has had regard to the nominee’s most recent Contract of Employment dated 14 January 2020 (signed and dated by the nominator and the nominee) and history of employment with the business since 29 January 2018 and is satisfied that the nominee has been and will be employed in the nominated position.
There is no evidence before the Tribunal to suggest the applicant is involved in labour-hire activities. There is no evidence before the Tribunal to suggest that the nominee will be on‑hired to any unrelated business.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
In considering this requirement, the Tribunal has had regard to documentation before it relating to the employment of the nominee. This includes the most recent employment contract, market salary information, written and oral submissions from the applicant and Mr Chandan and the most recent financial information provided by the applicant, including taxation returns and financial statements for FY2018 and FY2019 and BAS statements for FY2020. The applicant has also provided an updated letter from its accountant dated 16 June 2020, stating that the business is trading profitably and can meet all its tax liabilities and financial and legal obligations as an employer and nominator of full-time employees. In this letter the accountant confirms the turnover for FY2019 was $5,935,362.
The most recent employment contract and position description signed by the applicant and the nominee and dated 14 January 2020 provides for full-time employment as a Retail Manager for a minimum of three years commencing ‘immediately’, with no express exclusion of employment beyond that period. The Contract of Employment provides for a full-time salary of $56,118.40 plus superannuation at the legislated rate. The terms and conditions of employment are in accordance with the Fair Work Act2009. The applicant has also provided an updated letter from the applicant’s accountant, SS Accounting Solutions Pty Ltd, dated 9 January 2020, stating that the applicant has the capacity to meet all its financial and legal obligations as an employer.
Based on the Contract of Employment, updated financial information for FY2017 to FY2020, the accountant’s letter and oral evidence at the hearing, the Tribunal is satisfied that the nominee will be employed in the position of Retail Manager on a full-time basis for at least two 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 condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
There is currently no Australian citizen or permanent resident employed by the business performing equivalent work in the same workplace at the same location. The nominee is one of two qualified Retail Managers employed by the applicant, both of whom are the subject of review applications before this Tribunal relating to the refusal of nomination applications made by the applicant. Evidence before the Tribunal indicates that the other non-citizen Retail Manager is on the same salary and terms and conditions as the nominee.
A search of payscale.com undertaken by the Tribunal indicates that the median salary for a Retail Manager in Victoria is $54,000, with a range from $44,000 to $70,000. The applicant has provided details of labour-market testing and salary research which suggests that the advertised salary for a Retail Manager is between $50,000 and $65,000. Since commencing with the business, the applicant has had two pay rises, from $52,067 to the current salary.
The Tribunal has considered documentary evidence before it, including the nominee’s Contract of Employment, PAYG summaries and the General Retail Industry Award 2010 and is satisfied that the terms and conditions 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.
Based on the evidence, the Tribunal finds that the remuneration and terms and conditions of employment are no less favourable than that which would be provided to an Australian citizen or permanent resident with the same or similar skills and experience as the nominee, performing equivalent work at the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal notes that there is a client note in the Departmental records regarding an anonymous allegation received on 25 February 2018 which is suggestive of facilitation of fraudulent Subclass 457 visas and payment for visas which could fall within the definition of adverse information in r.1.13A of the Regulations. However, the Tribunal notes that the Department does not appear to have taken any action against the applicant in relation to the allegations, and that there is no other evidence before the Tribunal to substantiate the allegations. Accordingly, having regard to the date of the client note and the anonymous nature of the allegations, the Tribunal considers it is reasonable to disregard that information and is placing no weight on the information.
There is no evidence before the Tribunal to indicate that there is any other adverse information known to Immigration about the applicant or an associated person, which is not reasonable to disregard.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with Commonwealth or State workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
In this case, the nominated position and business are located in Broadford, Victoria, which is classified as ‘regional Australia’ for the purposes of this provision (Schedule B, IMMI 16/045). Accordingly, the requirements of r.5.19(4)(h)(ii)(A) and (E) are met.
In support of the application under review, the applicant has provided a statement regarding the genuine need for the nominator to employ the nominee in the nominated position of Retail Manager. The applicant has also provided a copy of its business plan, including competitor and market analysis and growth strategies, identifying the need for a full-time Retail Manager to support business growth.
The applicant has stated that the business is open 7 days per week, from 5.00 am to 10.00 pm Monday to Friday and from 7.00 am to 10.00 pm on weekends. In a written submission and oral evidence at the hearing, Mr Chandan noted that the second director of the business is a passive partner and is not directly involved in running the business. Mr Chandan has outlined his struggles to be present at the business as he lives in Melbourne, over 100km away, and has family commitments which prevent his full-time commitment and presence at the business. Mr Chandan has provided written and oral evidence of factors that contribute to his need to be in Melbourne with his family, as opposed to travelling to and from the business on a daily basis, including a home invasion which has caused lasting trauma to his family. Mr Chandan has also provided details about a break-in that occurred at the business, as evidence of the need for the role of a Retail Manager who is present at the business.

At the time of application, the applicant provided a detailed statement about the genuine need for a Retail Manager at the business, noting in particular the need for a full-time employee to address operational requirements including managing budgeting and stock control, marketing, devising and implementing business growth initiatives, maintaining service standards and managing employees. On review, Mr Chandan has noted improvements in business profitability and growth since the nominee commenced with the business and has highlighted managing stock levels, negotiating pricing and implementing promotions as examples of the nominee’s impact on the business.
The applicant has provided copies of advertisements for a Retail Manager and details of labour market testing undertaken by the applicant in October 2016. These include copies of advertisements placed in the local newspaper, the North Central Review, and on Gumtree. The applicant has stated that it has been unable to identify any suitable local candidates from applications received, as they lack the desired qualifications and relevant experience required for the role. The applicant stated that the nominee was already working for the business at the time of applying for the role, initially as a part-time kitchen hand and console operator and subsequently as a supervisor and had the required qualifications and experience for the role.
The Tribunal notes that the applicant currently has two full-time Retail Managers working for the business, both of whom are the subject of review applications before this Tribunal in respect of the refusal of the application for the nominated position of Retail Manager. At the hearing, the Tribunal sought detailed submissions about the need for the applicant to employ two Retail Managers. In oral evidence, the applicant outlined that the nature of the business and operating hours necessitates two people performing this function. Mr Chandan stated that the role of the Retail Manager is very different to that of the supervisors who do not have responsibility for higher-level decision making in the business. Mr Chandan stated that together the two Retail Managers ensure opportunities are seized, sales are optimised, and business growth and profitability continues. Mr Chandan stated that they liaise with and negotiate pricing with suppliers, set and manage budgets, undertake regular analysis of competitors, customers and demand to optimise growth, set and manage policies and train and manage staff.
Based on the applicant’s submissions and the evidence before it, the Tribunal is persuaded that there is a genuine need for the applicant to employ the nominee in the nominated position of Retail Manager under the applicant’s direct control, and that the applicant has made a number of attempts to fill the position with an Australian citizen or permanent resident living in the same local area to no avail. Accordingly, the Tribunal is satisfied that rr.5.19(4)(h)(ii)(B) and (C) are met.
The determinative issue in this case is whether the tasks of the nominated position correspond to the tasks of a Retail Manager (ANZSCO 351411). In this case the delegate considered the organisation chart submitted at the time of application did not establish that the nominated position was responsible for all staff members employed by the applicant and accordingly was not consistent with the tasks of the nominated position. The delegate also found that the position was not responsible for setting the overall direction and objectives of the business or undertaking other higher-level management responsibilities such as monitoring and evaluating business performance and allocating assets and resources. Accordingly, the delegate found that while the nominated position was responsible for some of the tasks of a Retail Manager, the majority of its tasks were not consistent with a role at this level. On this basis the delegate found that the nominee would not be undertaking the higher-level decision making specified for this role.
ANZSCO states that a Retail Manager (skill level 2) organises and controls the operations of establishments that provide retail services and lists the following tasks:
·determining product mix, stock levels and service standards;
·formulating and implementing purchasing and marketing policies, and setting prices;
·promoting and advertising the establishment's goods and services;
·selling goods and services to customers and advising them on product use;
·maintaining records of stock levels and financial transactions;
·undertaking budgeting for the establishment;
·controlling selection, training and supervision of staff; and
·ensuring compliance with occupational health and safety regulations.
The applicant has supplied the following position description for the nominee:
The Retail Manager will be responsible for management of daily operations of the fuel station and convenience shop at Broadford. Primary duties in this role will include:
·     Organises and controls the operations of the retail store (petrol station and take-away shop)
·     Analysing and setting product mix, stock levels and service standards
·     Formulating and implementing purchasing and marketing strategies, policies and prices
·     Running various promotions and advertisements within the store
·     Selling goods to customers and advising them on product use
·     Maintaining records of stock levels
·     Keeping financial transactions
·     Hiring, training and supervision of staff
·     Ensuring compliance with occupational health and safety regulations
On review, the applicant has provided extensive evidence about the nominee’s role and the tasks performed in that role. In submissions received prior to the hearing, the applicant has addressed the issues raised by the delegate in the decision record and provided documentary evidence to support the applicant’s evidence that the nominee is undertaking the higher-level management responsibilities that form part of the tasks of the nominated position. This includes documentary evidence demonstrating the nominee’s responsibility for setting prices, developing and implementing marketing strategies, maintaining stock levels, undertaking budgeting and managing human resources issues including selecting, training and supervising staff.
At the hearing of this matter Mr Chandan described the nominee’s role in cost setting, increasing sales and profit margins, negotiating prices with suppliers, rostering and managing staff, financial reporting, maintaining service standards, managing stock levels and occupational health and safety compliance. The applicant has stated that while the nominee ultimately reports to the business owners, the responsibility rests on the nominee for the organisation and management of day to day operations and that the majority of the tasks to be performed in the nominated position correspond to the tasks of a Retail Manager. The applicant has provided references from suppliers attesting to the nominee performing the role of Retail Manager and evidence of the efficacy of strategies devised and implemented by the nominee in increasing sales and profitability. The applicant has noted the nominee’s role in setting policies and procedures and supporting staff and swiftly implementing short term business changes during the COVID-19 pandemic.
Mr Chandan has described in detail the positive impact the nominee has had on the business, enabling him to get his personal life ‘back on track’. Mr Chandan stated that after employing the first Retail Manager, he identified a need for a second Retail Manager to cover the afternoon period and employed the nominee after advertising the role. Mr Chandan stated that the two Retail Managers have together driven increased sales and optimised returns for the business owners, enabling him to focus on other business opportunities. Mr Chandan has stated that due to the nature of the business and his location, both are required for the business to prosper.
At the hearing, the Tribunal also received oral evidence from the nominee, who appeared as a witness for the applicant. The nominee described his responsibilities in detail, noting that he controls the operations of the business, including budgeting, pricing and cost control, strategy, marketing, inventory reporting, stock control, setting and implementing policies and procedures, staff hiring and firing and training and detailing with customer complaints. He stated that he has regular engagement with suppliers and also with the industry association. He stated that the other Retail Manager works in the morning and he works in the afternoons. He stated that there is a crossover on shifts so they can do a formal handover each day and that they are also in regular telephone correspondence. He stated that some suppliers visit in the morning while others come in the afternoon and they have developed strong relationships with all the suppliers. The nominee’s evidence was consistent with that of the applicant.
Based on the documentary evidence before it and the applicant’s oral and written submissions, together with oral evidence of the nominee at the hearing, the Tribunal is satisfied that the tasks and duties of the nominated position accord to the roles and duties of a Retail Manager as set out in ANZSCO. The Tribunal is also satisfied that the nominee has the skills to undertake the nominated position, based on his qualifications and experience. The Tribunal is also satisfied that the nominee has been working in the nominated position undertaking these tasks at a level commensurate with the managerial and higher-level decision making associated with this position. Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(D) and (DA) are met.
The applicant has provided a copy of the Regional Certifying Body (RCB) advice dated 7 February 2018, attesting that it is satisfied that there is a need for the position, the position can’t be filled by an Australian citizen or permanent resident living in the same local area and the terms and conditions of employment are no less favourable than those that would apply if there were an Australian citizen or permanent resident available to fill this role. On the basis of the RCB advice, and the documentary evidence before it of the applicant’s unsuccessful efforts to fill the position with a locally based Australian citizen or permanent resident, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Phoebe Dunn
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2020] AATA 3942

3 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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