Capa Petridis Pty Ltd Atf The Petridis Family Trust (Migration)

Capa Petridis Pty Ltd Atf The Petridis Family Trust (Migration) [2020] AATA 5916 (8 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Capa Petridis Pty Ltd ATF The Petridis Family Trust
CASE NUMBER:  1833112
HOME AFFAIRS REFERENCE(S):          BCC2017/2896796
MEMBER:Phoebe Dunn
DATE:8 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 December 2020 at 10:42am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café/Restaurant Manager – tasks of the position – level of responsibility and decision-making power for the nominated position – akin to a Retail Supervisor at a lower skill level – full autonomy on day to day management decisions – only consults with busines owner on major issues – 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 Home Affairs on 7 November 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 13 August 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the nominee would be undertaking the higher level management tasks associated with the nominated occupation of Café/Restaurant Manager (ANZSCO 141111) at Skill level 2, and considered the position was more akin to that of a retail supervisory position at Skill Level 4.
The applicant, represented by the business owner, Mr Angelo Petridis, appeared before the Tribunal by video on 25 November 2020 to give evidence and present arguments. The hearing was conducted as a joint hearing with the review of the decision to refuse a Subclass 187 visa in the related case of the nominee, Ms Thy Trang Ta (Tribunal file 1836068), and the Tribunal also received oral evidence from Ms Ta.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and the applicants consented to the hearing being conducted by video. 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Post hearing submissions were requested by 9 December 2020 and were received on 26 November 2020.
The applicant was represented in relation to the review by its registered migration agent, Mr Abdul Hasib Khan.
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, Mr Petridis gave detailed oral evidence about the background to this matter, the nature of the business and the nominee’s role in relation to the business. Mr Petridis stated that he had been the owner of the business, My Café, for over 21 years and that it had been a longstanding successful operation situated on a busy strip in Griffith, Canberra. Mr Petridis stated that prior to the COVID-19 pandemic, the café operated 7 days per week, from 7.00 am to 10.00 pm weekdays and 7.00am to 11.00pm on Saturdays and Sundays. Mr Petridis stated that the café was currently open from 7.00am to 4.00pm each day and that he was hoping to re-open in the evening on Friday, Saturday and Sunday nights in early 2021. Mr Petridis noted that the café was licensed and very popular and had many loyal customers.
Mr Petridis stated that he currently owned a number of other businesses and had offices next door to the café. Mr Petridis stated that he had a genuine need for someone to manage the café to enable him to focus on his other business interests. Mr Petridis noted that he had previously had another Café Manager in the nominated position for a number of years and had successfully sponsored her to obtain a Subclass 187 visa. Mr Petridis stated he believed this nomination application was the same as the previous nomination that was approved and could not understand the basis for the refusal of this nomination application. Mr Petridis stated that he relied on the nominee to assist with getting the business back up to full capacity and credited her with supporting business growth and with restarting operations following the COVID-19 pandemic. Mr Petridis noted that the nominee had taken three months maternity leave in 2018 which required him to take a hands-on approach to the business and that he was very pleased when she recommenced work.
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 Tribunal has reviewed 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 application identifies the nominee, Ms Ta, in the nominated position of Café/Restaurant Manager (ANZSCO 1141111).
The Tribunal has also considered written and oral evidence about the need to employ the nominee in the nominated position. The Tribunal has carefully considered the evidence before it and is satisfied the nomination application has identified a need for the nominator to employ the nominee in the nominated position of Café/Restaurant 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 the Tribunal with extensive documentation demonstrating that the applicant is actively, lawfully and directly operating a business in Australia. This includes an ASIC and ABN extracts, recent Trust tax returns and financial statements for FY2018 and FY2019 and business activity statements (BAS) from January 2019 to 30 June 2020. 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.
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.
The most recent contract of employment for the nominee is dated 20 May 2017 and provides for the employment of the nominee in the nominated position of Café/Restaurant Manager at the location of the business in Griffith, ACT. Evidence before the Tribunal shows that the applicant has been employed with the business full-time for nearly five years. The applicant has provided a letter dated 4 September 2020 confirming continuing employment for at least two years following the date of the grant of a Subclass 187 visa.
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, which provides for employment for a minimum of two years with no express exclusion of the possibility of extension, market salary information, written and oral submissions from Mr Petridis and the most recent financial information provided by the applicant.
The most recent employment contract and position description signed by the applicant and the nominee and dated 20 May 2017 provides for full-time employment as a Café/Restaurant Manager for a minimum of two years from the date of the grant of the Subclass 187 visa, with no express exclusion of employment beyond that period. The applicant has provided a letter of confirmation dated 4 September 2020 that the position is still available to the nominee and the terms and conditions of employment still apply. The nominee has been working in the nominated position since early 2017 and prior to that was working as a casual floor staff member at the business. Based on material submitted to the Tribunal and oral evidence at the hearing, the Tribunal is satisfied that the nominee has been employed by the applicant in the nominated position since January 2017 and is still employed in the nominated position.
At the hearing, the Tribunal explored the profitability of the business, noting the impact of the COVID-19 pandemic and liabilities identified in the FY2019 financial statements. The Tribunal sought further information from the applicant about the financial status of the business and evidence that the business could sustain a full-time employee for at least the next two years. In response, Mr Petridis noted that the business had ‘weathered the storm’ of COVID-19 and was becoming profitable again. Mr Petridis noted that the business was not eligible for Jobkeeper in the second round as it had been too profitable, which he considered a good outcome and an indicium of the financial health of the business. Mr Petridis stated that he owned the property from which the Café operated, and the secured loan was against the property and currently on interest only terms and that he had never had any issues repaying the loan. In relation to the unsecured loans, Mr Petridis stated that these represented injections of personal funds into the business and had since been paid.
In post hearing submissions, the applicant has provided a letter from the applicant’s accountant confirming Mr Petridis’ oral evidence and stating that the business has the financial capacity to employ the nominee full time in the nominated position for at least two years.
Based on the Contract of Employment and letter of confirmation from the applicant, financial information for FY2018 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 Café/Restaurant 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 conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The most recent Contract of Employment for the nominee provides for a full-time salary of $54,000 plus superannuation at the legislated rate. The terms and conditions of employment are in accordance with the Fair Work Act 2009. The applicant has advised that the nominee’s salary has increased to $56,940, plus superannuation at the legislated rate.
There are no other staff members working for the applicant in the nominated position. In oral evidence at the hearing, Mr Petridis stated that the former Café/Restaurant Manager, who he had successfully sponsored to permanent residency, was on the same salary as the nominee’s first contract ($54,000). The Tribunal accepts the applicant’s submissions.
The market salary research undertaken by the Tribunal shows that the nominee’s salary is within the expected market rate. The nominee’s salary exceeds the highest minimum weekly wage under the Restaurant Industry Award 2010.
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.
There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the nominator or a person ‘associated with the nominator’.
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 applicant does not have a satisfactory record of compliance with workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, 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, r.5.19(4)(h)(ii) is the relevant provision. The applicant’s business is located in Canberra, ACT, which is classified as regional Australia for the purposes of this provision in Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that rr.5.19(4)(h)(ii)(A) and (E) are met.
The applicant has provided an updated submission addressing the requirement that there is a genuine need for the paid position under the nominator’s direct control. The applicant states that the nominee has been working full-time in the nominated position since 23 January 2017, noting that they required a suitably qualified Café Manager to manage a busy bar and restaurant with three dining areas. The applicant stated that the nominee had the requisite qualifications, with a Diploma of Business and a Bachelor of Business Administration, and experience in a related area. At the hearing, Mr Petridis noted that the nominee had been working for the business for some time as a casual employee while she was studying before being offered the role of Manager. In written and oral evidence, Mr Petridis attributes steady growth, quality, stability and good-will of the business to the nominee, noting in particular her recent efforts to restart the business following the easing of COVID-19 restrictions. Mr Petridis noted that his other business interests meant that he was not in a position to manage the business himself and he had relied on the nominee and the previous Manager to run the business on his behalf. He emphasised that the nominee is responsible for making all the day to day decisions and managing the operations of the café, consulting him on strategic matters only.
Based on the evidence before it, the Tribunal is satisfied that there is a genuine need for the nominator to employ the person identified in r.5.19(4)(a)(ii), being the nominee, as a paid employee to work in the position of Café/Restaurant Manager under the nominator’s direct control. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(B) is met.
The applicant has stated that the nominee began working in the nominated position of Café/Restaurant Manager from 23 January 2017, nearly eight months before the nomination application was lodged on 13 August 2017. The applicant has submitted that policy issued by the relevant Regional Certifying Body (RCB) operating in the Australian Capital Territory, being Skills Canberra, provided three ways in which an applicant could establish that the position could not be filled by a locally resident Australian citizen or permanent resident, which included relevantly that:
The nominee has worked fulltime for the employer in the nominated position at the nominated salary for the last three months before the application for RCB support is lodged. Student visa holders working 20 hours per week are deemed to be working full time.
The applicant has submitted that it met this criterion to the satisfaction of the RCB at the time of application by demonstrating that the nominee had worked full time for the employer in the nominated position at the nominated salary for at least three months before it applied to the RCB. Evidence before the Tribunal demonstrates that the applicant met this criterion to the satisfaction of the RCB. The RCB issued its advice on 4 August 2017 that the nomination satisfied the relevant criteria in r.5.19(4), noting that it had assessed the application against the criteria in r.5.19(4)(e) and rr.5.19(4)(h)(ii)(B) and (C), including the requirement that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area where the nominated position exits.

The applicant has not presented any specific evidence regarding recruitment efforts made by it prior to lodging the nomination application, noting that it did not consider it needed to do so as it met the RCB guideline set out in paragraph 47 above. The applicant has stated that the nominee was employed following a selection process on the basis of her qualifications and evidence that she had been working in the field of customer service for more than two years.
At the hearing, Mr Petridis noted that it was difficult to secure and retain suitably qualified employees in the restaurant industry, which is notorious for its high turnover and transient staff. Mr Petridis emphasised that he had successfully sponsored the former Café/Restaurant Manager for a permanent residency visa in the same circumstances and was delighted when the nominee, who was an existing employee with highly relevant qualifications and experience, was available for the nominated position, noting his prior experience of the difficulties attracting and retaining staff. Mr Petridis also noted the important role the nominee had played in responding to and implementing COVID-19 compliance arrangements specific to the business. Mr Petridis emphasised that the nominee had been critical in getting the business back on track and that because of her prior experience and deep knowledge of the business he was able to trust her implicitly. He stated that the nominee was very good at staff management and that she also had the trust of the staff, which was so important to getting the business back on track and to its future success. Mr Petridis stated that in his experience he would find it very difficult to replace the nominee and to do so would place considerable stress and pressure on the business and himself and would require a period of training and adjustment to get a new person up to speed. In his opinion, Mr Petridis stated that to replace the nominee would have a negative short to medium impact on the business and would require him to take an active role in the business, which he could not afford at this time. The Tribunal accepts this evidence.
The Tribunal notes that neither the RCB advice nor the RCB policy is determinative or conclusive to the Tribunal’s consideration of whether r.5.19(4)(h)(ii)(C) is met. Nonetheless, based on the evidence before it and noting the advice of the RCB, the Tribunal accepts that at the time of application the position could not be filled by an Australian citizen or permanent resident who is living in the same local area. The Tribunal also accepts, based on the evidence before it, that the position cannot now be filled by a locally resident Australian citizen or permanent resident having regard to the specific skills, experience and attributes of the nominee and the specific requirements of the nominated position, her years of experience working in the nominated position, her knowledge of the business, her understanding of the COVID-19 requirements specific to the business and her relationship with the local health authorities, and her relationship with other employees.
Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(C) is met.
The Tribunal notes that the RCB provided advice by email dated 4 August 2017 about the matters in r.5.19(4)(e) and rr.5.19(4)(h)(ii)(B) and (C), noting that there is a need for a paid employee in the nominated position within the business activities of the nominating employer, that the position cannot be filled by an Australian citizen or permanent resident living in the same area as the nominated position and that the 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 at the same location. The Tribunal accepts the information in the advice. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(F) is met.
The determinative issue on review is whether the applicant meets the requirements of r.5.19(4)(h)(ii)(D). In considering this requirement, the delegate was not satisfied that the nominee would have the level of responsibility and decision-making power for the nominated position, considering the involvement of Mr Petridis in the business, and considered the majority of the tasks to be performed in the role to be more akin to a Retail Supervisor at a lower skill level.
In written submissions and oral evidence at the hearing, the applicant has sought to establish that the nominee is undertaking the tasks of the nominated position and that she has independent and overarching responsibility for higher level decision making associated with the role. In particular, Mr Petridis noted that the hours of operation of the business required a person with experience and independence in the nominated position to ensure growth and stability of the business and satisfaction of staff and customers. Mr Petridis stated that while the nominee reports to him, the nominee acts independently in the nominated position, which facilitated Mr Petridis being able to focus on his other business interests.
ANZSCO states a Café/Restaurant Manager organises and controls the operations of cafes, restaurants and related establishments to provide dining and catering services, at Skill Level 2, requiring an AQF Associate Degree, Advanced Diploma or Diploma or at least three years of relevant experience. The following tasks are stipulated:
·planning menus in consultation with Chefs;
·planning and organising special functions;
·arranging the purchasing and pricing of goods according to budget;
·maintaining records of stock levels and financial transactions;
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance;
·conferring with customers to assess their satisfaction with meals and service;
·selecting, training and supervising waiting and kitchen staff;
·may take reservations, greet guests and assist in taking orders
The applicant has provided evidence of the nominee’s qualifications and experience in customer service roles as evidence of meeting the skill level requirements, noting that the nominee has a Diploma of Business and a Bachelor of Business Administration and proven capacity both in the nominated position and related roles. The Tribunal accepts that the nominee has both relevant qualifications and experience to undertake the nominated position.
The position description lodged with the application specified the following tasks:
·Report to the Managing Director / business owner for guidance and work;
·To manage the day to day affairs of the restaurant;
·Will be in charge of the restaurant;
·To plan menus in consultation with cooks and Managing Director;
·To plan and organise special functions;
·Arrange purchasing and pricing of goods according to the budget and take approval from the Managing Director;
·Plan provisioning of stores and maintain stock levels for the coming week;
·Maintain financial transactions;
·Ensure that dining area complies with the health regulations;
·Ensure that the dining area is clean, functional and has a welcoming appearance;
·Greet customers as guests and ensure that their meal order requirements are met to their satisfaction;
·Training and supervising waiting and kitchen staff;
·Make reservations and assist in taking orders; and
·Should be able to maintain and work to OH&S standards as warranted in NSW.
The applicant has provided evidence of the nominee undertaking the tasks of the nominated position, to demonstrate the nominee has been independently performing the management tasks associated with this role, and Mr Petridis described this in detail at the hearing. This included specific evidence of the nominee undertaking tasks such as:
a.Planning the menu in consultation with the cooks;
b.Planning and organising special functions, such as Halloween, Remembrance Day and Valentine’s Day;
c.Purchasing and pricing of goods;
d.Maintaining stock levels and negotiating with suppliers;
e.Maintaining financial transactions; and
f.Training staff.
At the hearing, Mr Petridis stated that he was reliant on the nominee to manage the day to day affairs of the restaurant as he was focused on his other businesses. He stated that the nominee opens the restaurant each day and manages all aspects of the business from banking and finances, staff rosters and wages, training, hiring and firing, liaising with the head chef on the menu and weekly specials, managing stock orders, stock control and pricing, liaising with ACT health, customer service, functions, bookings and managing the business Facebook page. He noted that she has always ensured customers are looked after and that they provide quality food and service. He stated she is fully in charge of making decisions such as menu pricing, staffing requirements and stock control to manage the budget and ensure turnover expectations are being met. He noted that she had been central to decisions to cut the menu, determine hours of operation and implement a COVID-19 safety plan and compliance system once the restaurant had been able to reopen.
At the hearing the nominee gave detailed oral evidence regarding her performance in the nominated position. The nominee clearly articulated her daily and weekly tasks, consistent with her position description and with the evidence of Mr Petridis. She noted that while she sees Mr Petridis regularly as his office is next door, she has full autonomy on day to day management decisions and only consults with him on major issues. This includes the recruitment and firing of staff, training, rosters, managing suppliers, stock levels, menu decisions, pricing, events, OH&S requirements including COVID-19 safety requirements and customer satisfaction.
At the hearing, Mr Petridis commented that he could not understand why the delegate had compared the role of the nominee to that of a Retail Supervisor at a lower Skill Level 4. Mr Petridis stated that it is clear that the business is a thriving restaurant with a liquor licence, open seven days per week. He stated it operates on a regularly changing seasonal menu, with weekly specials. He was concerned to emphasise that it was not a short-order, fast food restaurant and that the nominee was clearly operating as a Café/Restaurant Manager with autonomy, not a Retail Supervisor. He stated that the Department has accepted this evidence in approving the nomination for a former Café/Restaurant Manager who had the same role and worked for him for approximately four years.
The Tribunal has considered the totality of the evidence before it, including written and oral submissions and documentation and evidence relating to the nature of the business, and is satisfied that the majority of the nominee’s tasks are consistent with the higher-level tasks associated with the nominated position of Café/Restaurant Manager at Skill Level 2. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(D) is met.
There are no additional specifications relating to the nominated position. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(DA) is met.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
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 5916

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