CDC NOMINEES (TCTP) PTY LTD AS TRUSTEE FOR THE TCTP PARTICIPATING TRUST & INDIGENOUS BUSINESS AUSTRALIA (Migration)

CDC NOMINEES (TCTP) PTY LTD AS TRUSTEE FOR THE TCTP PARTICIPATING TRUST & INDIGENOUS BUSINESS AUSTRALIA (Migration) [2021] AATA 1828 (22 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CDC NOMINEES (TCTP) PTY LTD AS TRUSTEE FOR THE TCTP PARTICIPATING TRUST & INDIGENOUS BUSINESS AUSTRALIA
CASE NUMBER:  1821550
HOME AFFAIRS REFERENCE(S):          BCC2016/2345810
MEMBER:Alan McMurran
DATE:22 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 22 April 2021 at 7:14pm

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Customer Service Manager – genuine need for the position – tourism based business closed for COVID-19 pandemic – actively and lawfully operating a business in Australia – terms and conditions of employment – referral for Ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 245, 351
Migration Regulations 1994, r 5.19
CASES
Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1731
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 6 July 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 July 2016. 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)(B) of the Regulations because the delegate found on the available information that the applicant had not established a genuine need to employ a person for the nominated role.
The applicant nominated Yu-Chin Lee, a 37-year-old citizen of Taiwan (“the nominee”), for the role of Customer Service Manager (ANZSCO 149212).
The applicant appeared before the Tribunal on 22 April 2021 by video from Cairns in accordance with the Tribunal’s Pandemic protocol, to give evidence and present arguments. The hearing was a combined hearing of the review of the nomination refusal and the nominee’s subsequent visa refusal [1]. The Tribunal received oral evidence from the applicant’s former General Manager,[2] from the nominee, and from the representative who attended the hearing.
[1] Tribunal case 1824263 (Yu-Chin Lee)
[2] Ms. Hollingsworth
The applicant was represented in relation to the review throughout, by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Background
The basic chronology in respect of the proceedings is as follows:
·February 2016, nominee commences employment with the applicant.
·13 July 2016, nomination application lodged with Department together with application by nominee.
·6 July 2018, Department refuses nomination.
·25 July 2018, applicant lodges review of nomination decision.
·16 August 2018, Department refuses the related visa application by the nominee.
·21 August 2018, the nominee lodges her application for review.
·January 2020, Covid-19 Pandemic commences.
·March 2020, the nominee’s employment is suspended and the nominee “stood down” with other employees, due to Covid.
·21 January 2021, the Tribunal makes a written request for information from the nominator.
·29 January 2021, the applicant sought and was granted an EOT to respond to the Tribunal.
·31 January 2021, the applicant closes the doors on the theme park and the nominee is made redundant.
·17 February 2021, the applicant responds to the Tribunal requesting a hearing with oral submissions to be provided.
·February 2021, the applicant enrols in a certificate course in leadership and management, in an authorised training institute in Cairns.
·22 April 2021, the AAT conducts its review.
The applicant is a trustee for the TCTP participating Trust, and Indigenous Business Australia, trading under the name Tjapukai Aboriginal Park partnership (“the applicant’s business”).
The applicant has conducted the business since 4 April 2000, located in Cairns, North Queensland. The applicant’s business involved the lease of a location in the Cairns district enabling the applicant to create a theme park for the presentation of aboriginal culture.
The former General Manager of the theme park gave a detailed submission to the Tribunal about the history and background of the applicant’s business, which has operated continuously for approximately 20 years, and prior to that in a different entity, for some 13 years since 1987.
The applicant’s business involved amongst other things, aboriginal cultural performances, dance, and music in a purpose-built theme park environment in Cairns. Approximately 3 million people worldwide and comprising mostly visitors from overseas, have experienced performances since 1987.
The applicant’s business survived entirely upon tourism, and being dependent in that regard, was unable to sustain the closure of Australia’s borders due to the Pandemic. The business closed to the public on 31 January 2021. There are indications the business may resume sometime in 2021/2022, but there is no cogent evidence before the Tribunal in that regard.
As at the time of the decision on this review, the applicant’s theme park business has closed.
Both the applicant and the nominee have made submissions to the Tribunal, setting out reasons for the business closure, and the termination of the nominee’s employment for redundancy.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has available the Department file[3] and more recent submissions received by the Tribunal on its file. The Tribunal has also had the benefit of hearing from the applicant’s representative and the nominee in person.
[3] BCC2016/2345810 and BCC2016/2346335
Both the applicant and the nominee had requested a hearing so they might make representations to the Tribunal and provide explanations for the events summarised above. Both the applicant and the nominee conceded that the nomination application could not succeed, given the business closure.
Both applicants have requested however, that the Tribunal consider referring the matter under s.351 of the Act for Ministerial intervention.
The formal 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.
As indicated, the Tribunal is also asked to consider exercising its discretion to make a Ministerial referral.
The Tribunal has proceeded to make the following findings accordingly.
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 a paid employee to work in the position under their direct control.
The application was made on the approved form 1395 (Internet) for post 23 March 2013 applications. The application for a position in regional Australia did not require a fee. The applicant included the necessary written certification as to not contravening s. 245AR(1), which relates to payment for a migration outcome.
At the time of application, the applicant identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. At that time, the applicant employed 67 Australian employees and the nominee, who was the only customer service manager, dealing with a variety of issues, primarily concerning liaison with tour operators, tourists and staff in the park, and marketing the applicant’s business, primarily overseas.
Accordingly, the Tribunal is satisfied that the available information demonstrated that at the time of application, the requirement in r.5.19(4)(a) was 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.
At the time of decision, the applicant has conceded in written submissions to the Tribunal and orally at the hearing from the former General Manager of the theme park, that the applicant’s business involving the theme park and where the nominee was to be employed, is no longer active and has “closed its doors” to the public.
The Tribunal finds therefore that there is no information before it which illustrates the applicant’s theme park business, the subject of the nomination application, is actively operating in Australia. It no longer has any paid employees in the business and does not submit that there is now a need at the time of decision, for the position nominated.
Accordingly, the requirement in r.5.19(4)(b) is not met.
As a result, the Tribunal is not required to consider the remaining criteria for the regulation and finds that the applicant does not meet r.5.19(4).
Ministerial intervention request
The decision in this instance is pursuant to Part 5 of the Act, being a reviewable decision.
The applicants have requested the Tribunal to consider a recommendation to the Minister for a more favourable decision, which is otherwise beyond the jurisdiction of the Tribunal.
The Tribunal has no obligation to make such a referral. Further, any such recommendation is not binding on the Minister.
Equally, the Minister has no obligation or duty to consider the recommendation, where made. The relevant section simply provides (in part):
s.351(1) if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
The section has been the subject of judicial consideration, where the Chief Justice of the Federal Court of Australia has noted that the section may assist in circumstances where there is an inherent “inflexibility of the Act and regulations” [4], while also noting that “The Court has no authority to direct or order its exercise or non-exercise in any particular way or for any particular reason”.[5] The Chief Justice went on to determine in that instance that “it is not inappropriate then in a case such as this attention should be drawn to the consequences of the inflexibility of the Act.”[6].
[4] Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1731 at [41];
[5] ibid
[6] ibid
The President of the Tribunal has directed as follows:
“Members should have regard to the Ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.
The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister”[7]
[7] Justice David Thomas 1 August 2018
The Minister has provided guidelines[8] of the types of cases and unique facts or circumstances which may apply. They have been summarised as compassionate circumstances, including hardship and loss of cultural or other benefit, circumstances not anticipated by the legislation and which may result in unfairness or unanticipated outcomes, and circumstances where return to a country of origin of an applicant is not available due to circumstances beyond the applicant’s control.[9]
[8] See : see also Tribunal decision: Alhaddad (Migration) [2020] AATA 5197 (18 November 2020) at[30]
The Tribunal has considered all the available information, together with the submissions prepared for the AAT, and the oral evidence and submissions from the hearing.
An extract from the written submissions from the General Manager is useful and pertinent in addressing some of the issues raised by the guidelines.
The submission received by the Tribunal on 20 April 2021 follows, and is repeated in full so as to avoid destroying context through abbreviation in editing:
Submissions to the Administrative Appeal Tribunal
CDC Nominee's (TCTP) PTY LTD as trustee for the TCTP participating trust & Indigenous Business Australia trading under the name of TJAPUKAI ABORIGINAL PARK PARTNETSHIP ("Tjapukai") is the applicant for review in this case N. 1824263.
Their ABN 37121038415 is current and active since 4th April 2000 (see annexed ABN LOOKUP report).
On 13^th July 2016 CDC Nominees lodged an application for a Regional Employer Nomination in relation to a visa application by Yu-Chin LEE for a 187 RSMS visa.
The nomination was refused 6^th July 2018, two years after the application.
At the time of application Greg Erwin was the Chief executive officer that signed the employment contract with Yu-Chin LEE on behalf of Tjapukai. Since then, there have been changes to the person in charge of the business operations up till 3l5t January 2021.
I, Shirley Hollingsworth was the General manager at that time.
History of Tjapikai
Located in Cairns, Tropical North Queensland, Tjapukai has been sharing the authentic culture and traditions of the local Djabugay people for the past 33 years, providing employment opportunities for their people and giving the performers immense pride in demonstrating their culture.
More than 3 million people around the world have discovered how to "shake a leg" by joining in traditional performances drawn from Djabugay corroborees, they have learnt how to make fire without a matchstick and been enthralled with the haunting sounds of the didgeridoo.
From its inception, Tjapukai's mission has been about giving Australians and international visitors the opportunity to experience authentic Aboriginal culture and interact with Traditional Owners. That mission now includes authentic Torres Strait Islander culture.
Tjapukai was founded in Kuranda in 1987 by international theatre artists Don and Judy Freeman, David Hudson, a Ewamian man who was brought up among the Djabugay people, and his wife Cindy. They combined their performance expertise with the cultural knowledge of six Djabugay men - Willie Brim, Alby Baird, Wayne Nicols, Irwin Riley, Neville Hobbler and Dion Riley - to create a one-hour play incorporating the dance-rich culture of the Djabugay people who had lived in the rainforest around Kuranda for tens of thousands of years.
In 1996 Tjapukai moved to a 25 acre site next to Skyrail Rainforest Cableway at Caravonica and expanded to include interactive cultural demonstrations and performances, a cultural village, restaurant and retail gallery. Tjapukai performers were in demand at world events as an authentic example of Australia's Indigenous culture. These included the Welcome Ceremony for the Sydney Olympic Torch and the bid for the Gold Coast to host the Commonwealth Games in 2018. In 2002 Queen Elizabeth and Prince Phillip's Australian visit included Tjapukai. The following video clip captured the moment:
w.abc.net.au/news/2018-03-03/prince-philip-queen-visit-cultu ral-cen tre/9504464
Tjapukai has been the largest Indigenous employer of any tourism enterprise in Australia with more than two-thirds of the team Indigenous. Tjapukai has worked in consultation with Traditional Owners and has injected in excess of $40 million into the local Indigenous community through wages, royalties, and the commissioning and purchasing of authentic art and artifacts.
It is common knowledge that the COVID19 pandemic has hit the tourism industry in Cairns in an unprecedent way. Tourist numbers, particularly international tourists have plummeted to an unsustainable level for any tour operator to continue to operate in a profitable manner.
Tjapukai closed its door to the public on 31^st January this year. All employees had been stood down indefinitely from about March 2020. It was a tragic day for a lot of people including myself and of course the nominee/visa applicant Yu-Chin LEE.
As it can be seen from the annexed article of the Cairns Post, dated Saturday 16^th January 2021 it appears that relaunch plans are already on foot for Tjapukai's revival. A copy of that article is attached.
I would like to say a few words in support of Yu-Chin.
The Nominee Visa Applicant
Yu-Chin LEE is a native of Taiwan who has lived and worked or studied in Cairns for the past ten years. She entered Australia for the first time on 14^th September 2011 on a working holiday visa. At the end of her visa, she decided to further her education in Cairns and while on a student visa she completed a Diploma in Business Management in November 2014.
Post-graduation she worked in the tourism industry as a marketer/travel consultant. She made good use of her ability to speak native Chinese to market tours and other local attractions as well as to Chinese tourists visiting Cairns.
In about February 2016, she commenced employment with Tjapukai. She initially started as a team park guide for our Chinese visitors where her duties included escorting and assisting them and answer any questions they might have had. It became immediately apparent that she had excellent marketing and customer service skills and the then management immediately realize her potential for increasing Tjapukai exposure and revenues to the Chinese developing market. Management had no hesitation in sponsoring her for the position.
She immediately set upon liaising with Chinese travel and tour companies interstate and overseas to capture that market. She did so effectively and efficiently.
In June/July 2018 she visited China to promote several key tourist operators in the region including Tjapukai . She visited Hong Kong, Taiwan and seven different cities in Mainland China showcasing Aboriginal culture and promoting the theme park. It was an unprecedented success. Tjapukai was capturing more and more of the market. Prior to Covid 9 the park had achieved an increase in Chinese visitors of 50% over the previous year.
She represented Tjapukai at local and interstate trade shows in Sydney and Adelaide. She escorted travel companies' representatives and international media around the park to showcase the variety of Aboriginal cultural experiences presented to our visitors. She was very successful in securing international media attention. She had a deep understanding of the Chinese tourism landscape and contributed significantly to formulating the park's annual marketing and sales budget. She also assisted with sales and marketing plans not just for a Chinese market but in general.
She helped with the creation of Chinese brochures, maps, etc and translation of our web site in Chinese.
She devoted herself to the job. She was exceptional in capturing and gaining a deep understanding not just of the park activities but, most importantly of our Aboriginal history and culture. This allowed her to become the conduit through which any visitor of the park could understand and appreciate the significance of our activities as they relate to our culture.
She was well liked and respected by all staff, performers and management alike. She was a real team player. Her value to Tjapukai, I believe, could not possibly be overstated.
After 31^st January 2021 Yu-Chin did not waste time to ponder about the consequences of her unfortunate and unforeseen circumstances. She found alternate employment in the Cairns CBD using her customer service skills and decided to further her education.
She enrolled in and is currently studying for an advanced Diploma in Leadership and Management at Cairns College of English and Business. She will graduate in December this year. She intends to undertake further tertiary education at the local James Cook University after graduation.
She is confident, as I am, that circumstances will get better once the pandemic is over. She feels that she has invested 10 years of her life in Australia and does not want that to go to waste by returning to Taiwan to what it certainly is a more uncertain future.
She is an asset to Australia. If l had my own business and I were to need a person like Yu chin I would have no hesitation to hire her and sponsor her before some else secures her services. I say that because it appears to be the consensus of most tourist operators in North Queensland that the Taiwanese market is the one that will have the greatest opportunity to be tapped for tourism in Australia as soon as the borders reopen. I have no doubt that Yu-Chin will be able to exploit that opportunity for whoever her employer will be.
Submissions in support of Yu-Chin
I am advised by our legal representative, Mr Lanza, that following the closing down of Tjapukai, this Tribunal will more likely than not affirm the decision of the Department of Home Affairs not to approve the nomination and therefore not to grant a visa to Yu-Chin. This is because the Tribunal must make a decision based on the facts as they are at time of that decision, i.e the time of this hearing.
I understand such is the law. However, I believe it is reasonable to see how not granting her the visa appears to me personally and Yu-Chin to be unjust.
Tjapukai's application was lodged on 13th July 2016. The decision to refuse the nomination and therefore her visa was handed down on 6^th July 2018. The decision was appealed within 28 days from that date, and we are having a hearing on 22^nd April 2021.
Almost 5 years have passed since the original application.
Businesses, all businesses, are entitled to conduct their operations, and make decisions, relying upon Administrative bodies to provide timely decisions. Uncertainty in these cases is not inducive to good planning and good management.
Be that as it may, no one could have predicted the COVID19 pandemic nor foreseen how it would have affected and will continue to affect the economy in general and the tourism industry in Cairns in particular. It could be reasonably said, however, that had this case proceeded in a timely manner it could well be that Yu-Chin would by now have been a permanent and productive resident of Australia.
It is my understanding that Yu-Chin cannot make another application for any visa in Australia because her application for a 187 visa was refused on 6^th July 2018. She would have to leave the country to do so .I am told that she can appeal to the Minister's discretion to grant her a short-term visa that could allow her to subsequently apply for a student visa to at least be able to continue her studies in Australia.
I am also told that this Tribunal has a discretion to recommend to the Minister to consider exercising his discretion.
As stated, Yu-chin is the victim of unique and exceptional and, may I add, compassionate circumstances. I appeal to the Tribunal's sense of justice and fairness and seek this Tribunal's intervention in recommending that this is a matter where the exercise of the Minister's discretion is warranted.
Thanking you sincerely
Shirley Hollingsworth Former General Manager
Tjapukai Aboriginal Culture Park
The Tribunal’s request

The Tribunal has listened carefully to the oral submissions at the hearing.
The General Manager was able to describe in some detail the multiple tasks performed by the nominee in her role, including working with other staff in the park, developing a large and active overseas market, particularly amongst Chinese tourists, attending multiple trade shows, and including being a member of a delegation from Cairns representing a number of local businesses which travelled overseas to promote the regional area, and which was extremely successful.
The nominee is credited with introducing Aboriginal culture to many thousands of visitors to Australia, through vigorous and successful marketing campaigns over several years on behalf of the applicant and promoting very effectively Aboriginal tourism in the region. The nominee herself has become uniquely skilled and experienced in understanding the local aboriginal culture and how it might be successfully promoted and marketed.
The Tribunal formed the view the nominee herself is both passionate and sincere about her desire to continue living and working in the region and to contribute to Australia in a very meaningful way.
The Tribunal also formed the view that but for the unexpected arrival of the Pandemic in early 2020, Australia’s borders would still be open to tourism, and the applicant’s business benefiting accordingly. The nominee would still have her employment, and on the information available to the Tribunal at the time of decision, it is entirely plausible the Department’s decision on the nomination may have been reversed, as on its face, the application appears to meet the other remaining criteria under regulation 5.19 (4) which have otherwise not been considered by this decision.
The Tribunal is of the view that it was not intended that the Act and Regulations would operate in such a way that the mere passage of time through unanticipated delays and extraordinary events, such as the Pandemic, might result in an adverse decision for an applicant than might otherwise be the case. An applicant, who had reasonable expectations of success, but who now confronts the inflexibility of the Act and Regulations to deal with such delays and extraordinary events.
The outcome in this instance is indeed harsh. The nominee has invested a substantial part of her life, in excess of 10 years, studying and learning both Australian and Aboriginal culture and contributing effectively and in large measure to a vigorous and vibrant commercial community in regional Australia, before the shock of the Pandemic has temporarily at least nullified those efforts.
The nominee will be compelled to uproot herself from the local community where she has established substantial ties, as evidenced from the number of written references in her support to the Tribunal, both from the local and Aboriginal communities and with whom the nominee has established a significant bond. The nominee has on the evidence worked very hard to establish herself and build a reputation in the community for exemplary performance.
In the Tribunal’s view in this instance, the applicant has met the Minister’s guidelines for consideration. The nominee’s circumstances are both unique and compassionate and in the supporting information and documents, have been recognised by her industry peers.
The applicant is not prevented from making the request by any of the circumstances described in the guidelines as “inappropriate to consider”.
The Tribunal has no discretion or authority in the matter once the question of regulatory compliance has been answered. The Tribunal finds however that it is satisfied a strict application of the legislated requirements will result in this instance in an unanticipated, unreasonable, and unfair outcome, entirely due to events beyond the control of either the applicant, or the nominee herself.
The Tribunal is satisfied of the merits of the request made by the applicants and their agent, to request Ministerial intervention in this case, and unequivocally supports the request for Ministerial intervention.
The applicant herself, with the assistance of her agent, can also seek Ministerial intervention, irrespective of the Tribunal’s request to do so.
Decision outcome
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3).
Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Alan McMurran
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2021] AATA 1828

22 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Standing

Procedural Fairness