Central Cleaning Supplies (Aust) Trust (Migration) - [2019] AATA 6460

Central Cleaning Supplies (Aust) Trust (Migration) [2019] AATA 6460 (12 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Central Cleaning Supplies (Aust) Trust
CASE NUMBER:  1803134
DIBP REFERENCE(S):  BCC2017/884871
MEMBER:Mark Bishop
DATE:12 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 December 2019 at 10:32am
CATCHWORDS
MIGRATION – nomination refusal – Direct Entry Nomination stream – Retail Manager – genuine need for the nominator to employ a paid employee – No less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37
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 25 January 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 7 March 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 applicant provided a copy of the decision record to the Tribunal. The Tribunal has reviewed the decision record.
The decision record is not binding on the Tribunal. The review application is a de novo hearing. The Tribunal brings and independent and fresh mind to the review application proceedings.
The nominator appeared before the Tribunal on 12 December 2019 to present argument and give evidence.
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.
On 7 March 2017, CENTRAL CLEANING SUPPLIES (AUST) TRUST, trading as Central Cleaning Supplies (Aust) Pty. Ltd. lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the Direct Entry stream for the position of Retail Manager (ANZSCO 142111). The nomination was lodged in favour of Mr Amit Kumar.
The nominator provided information in the application (and supplemented in evidence by the nominator) that the business commenced trading in Australia in February 2005 and currently employs 76 Australians/Permanent Residents and three foreign employees. The business operates as a wholesale and retail distributor of cleaning materials, chemicals and equipment. Central Cleaning Supplies has six sales outlets in Victoria along with the National Head Office, as well as two sales outlets in New South Wales and one is Tasmania. It has plans for immediate and ongoing expansion to other states and regions of Australia. Full detail is outlined in the document discussed in paragraph 13 below.
Per the organisation chart provided, the Head Office appears to accommodate a number of high-level positions within the business including the Managing Director, General Manager, Customer Service Manager, Operations Manager, Finance and IT Manager, Purchasing Manager as well as the accounts receivable payable/payroll section.
The nominator is seeking approval to sponsor the nominee to manage the store in Hobart Tasmania as Retail Manager as defined in the ANZSCO code. Information provided in the Labour Market Test Market Salary Report submitted with the application indicates that the Hobart outlet has been in operation since 2002 and currently trades five days a week. This position reports to the Tasmania State Manager.
On 11 December 2019 the nominator provided a lengthy business plan for Central Cleaning Supplies to the Tribunal. This document addressed information relevant to the nominee, a business overview of the company, the business history of the company, site location and products, a SWOT analysis and vision statement, regulatory and legal matters, marketing sales aspects of the business, the personnel and organisational basis of the company, the educational qualifications of the nominee and how the nominated position fits within the company business.
This business plan was comprehensive and address all relevant aspects of r.5.19(4). The Tribunal has considered it at length.
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 nomination application was lodged on an online form and the applicant certified that it had not engaged in conduct that contrives subsection 245AR(1) of the Migration Act 1958. As the nominated position is located in regional Australia no fee is payable: r 5.37(2)(a). The applicant has identified a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.
Therefore, this criterion is satisfied.
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 applicant is actively, lawfully and directly operating a business in Australia.
The applicant provided material to the Tribunal which demonstrates that it is actively and lawfully operating a business, including:
·Current ASIC registration and historical information (TF 83 – 85)
·ATO Integrated Account information from 1 July 2016 to 30 June 2017 (TF 76 – 79) and 1 July 2017 to 30 June 2018 (TF 71-73)
·Financial Report for year ending 2018 (TF 65 - 70)
·BAS Statements from July 2017 to June 2019 (TF 112 – 123)
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 information before the Tribunal to indicate that the applicant’s business activities relate to the hiring of labour to other unrelated businesses
Accordingly, the requirement in r.5.19(4)(c) is met.
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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Nominator provided to the Tribunal a signed employment contract dated 27 November 2019 (TF 96-101). The contract provided that the nominee would be employed for a minimum of two years.
The nominator provided financial accounts to the Tribunal for the FY2017 and FY2018. These accounts showed the nominator made a profit of $753,829 in the FY2017 and $713,868 in the FY2018.
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.
The nominator provided documentation to the Tribunal that shows the nominee is the only Retail Support Manager employed by the nominator and there are no equivalent workers. The the organisational chart shows two other retail support manager positions; however, these are currently vacant (TF 59).
The nominator provided salary research to the Tribunal as outlined below:
·Joboutlook.gov
oRetail Managers, Median weekly pay is $1,440 (TF95)
·Payscale
oExperienced Retail Manager in Australia, Median salary is $54,000; average salary is $53,820 (TF94)
Online enquiries by the Tribunal demonstrated the following positions:
·Seek
oStore Manager, CLIMB Retail Recruitment – Hobart, $55,000
ohttps:// Retail Manager – Braybrook, Melbourne, $80,000
ohttps://
·Relevant award:
oThe application declares terms and conditions will be equivalent to Australian employees.
oThe applicant provided a revised employment agreement dated 27 November 2019 signed by the nominee that advised the nominee would be employed as a Retail Manager in Tasmania at a salary of $75,000 base exclusive of superannuation. Ordinary hours were Monday to Friday 8am to 5pm.
oThe General Retail Industry Award 2010 applies to his employment.
Therefore, the criteria that the nominee would be employed on terms and conditions not less favourable than those offered to Australians is satisfied.
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.
Adverse information
Nominations must comply with r 5.19(4)(f) which requires that no adverse information is known to immigration about the nominator or a person associated, or that it is reasonable to disregard any adverse information.
Adverse information as defined in r.1.13A (previously r.2.57(3)) includes information that the person:
·has been found guilty by a court, of an offence under a Commonwealth, State or Territory law; or
·has, to the satisfaction of a ‘competent authority’,[1] acted in contravention of a Commonwealth, State or Territory law; or
·has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or
·has become insolvent within the meaning of s.5(2) and (3) of the Bankruptcy Act 1966 and s.95A of the Corporations Act 2001.[2]
[1] ‘Competent Authority’ is defined as a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened: r.2.57(1) as inserted by SLI 2009 No.115.
[2] r.1.13A(1).
When there is adverse information, the Member must determine whether it is reasonable to disregard that information.
Policy guidance[3]
[3] From Legal Commentary
Departmental policy and operational guidelines on assessing adverse information provisions state:
·    Under policy, decision-makers should take the following factors into account when deciding whether it is reasonable to disregard the adverse information:
·    the nature and seriousness of the adverse information
·    whether the adverse information arose recently or a long time ago
·    how the adverse information arose, including the credibility of the source of the adverse information
·    whether the allegations have been substantiated or not – e.g. whether the applicant has been convicted of an offence under Australian law or investigations are ongoing
·    whether the applicant has acknowledged the issues with their previous behaviour
·    whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repaying monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not reoccur
·    whether the applicant has demonstrated subsequent compliance
·    whether the conduct of concern is likely to recur
·    information about relevant findings made by a competent authority
·    whether there are any compelling circumstances affecting the interests of Australia.[4]
[4] Policy – Migration Regulations – Division 1.2 Interpretation – Division 1.2/reg 1.13A Adverse information and skilled visas (regulation 1.13A AND 1.13B > 4. Procedural Instruction > 4.4 Assessing adverse information provisions> 4.4.2.1 Factors that should be considered (reissued 12 August 2018).
These guidelines are not exhaustive and the determination of whether it is reasonable to disregard the information is a question for the relevant decision maker, having regard to all the relevant circumstances of the case.
According to ICSE records the nominator is a client of interest. ICSE recorded three allegations in April 2014, July 2015 and March 2019 that the nominator was employing students in breach of visa conditions.
The Tribunal outlined the particulars of the adverse information and asked the nominator to respond. The nominator advised the Tribunal he was completely unaware of the three allegations. The Department had not contacted the nominator. The Department had not written to the nominator. The Department had not contacted or consulted with the nominator in any way in respect to the three allegations. The Department had not drawn the allegations to the attention of the nominator.
The Department did not make the particulars of the allegations outlined in paragraph 40 above available to the Tribunal. In these circumstances the Tribunal does not give the allegations any weight.
There is no adverse information before the Tribunal relating to immigration matters and the nominator or nominee.
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.
1. The MRD Commentary provides the following guidance (emphasis added):
Departmental policy and operational guidelines state that the requirement can be considered satisfied unless the decision maker has received information that suggests the employer has not complied with workplace relations laws.[5] These guidelines note that the Department of Jobs and Small Business (DJSB) and Fair Work Ombudsman regularly provides the Department with a list of employers who have been prosecuted for a breach of workplace relations laws or who the DJSB believes to have breached workplace relations laws but prosecution was either unwarranted or not possible.[6] Current and former employees and members of the public can be alternative sources of information concerning the employer’s failure to comply with workplace relations laws. The guidelines suggest that where information received from a third party is utilised to refuse a nomination, decision makers should be mindful of both procedural fairness and privacy obligations.[7]
What constitutes a ‘satisfactory record’ of compliance with workplace relations laws?
The term ‘satisfactory record’ is not defined in the Regulations […] In Nice Shoes Aust Pty Ltd v MIMIA, the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in training requirement for standard business sponsors in the since repealed r.1.20D(2)(c)(ii).[8] In that case, the Court observed that the difficulty with such a definition is that it provides no measure or standard against to determine whether something is ‘satisfactory’. Looking to the broader context of r.1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia.[9] Critically, the Court observed that the relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant had such a satisfactory record.[10]
This suggests that in this context, the criterion would not necessarily require the employer to demonstrate a ‘blemish-free’ record of compliance with workplace relations laws. Instead, the level of compliance by the employer may instead be of such a level to satisfy the decision maker that the employer will be able to fulfil its workplace obligations to the employee such that the nomination should be approved.
[5] Policy – Migration Regulations – Division 5.3 General > Div 5.3/reg.5.19 > 4. Procedural Instruction > 4.2 Common nomination criteria > 4.2.13 Compliance with employment laws (reissued 12 August 2018).
[6] Policy - Migration Regulations - Divisions > Div 5.3 - General > Approval of nominated positions (employer nomination) > 7.Part A - Common criteria > [7.7] Compliance with workplace relations laws > [7.7.2] Assessment (reissued 27/07/17); Policy – Migration Regulations – Division 5.3 General > Div 5.3/reg.5.19 > 4. Procedural Instruction > 4.2 Common nomination criteria > 4.2.13 Compliance with employment laws (reissued 12 August 2018).
[7] Policy – Migration Regulations – Division 5.3 General > Div 5.3/reg.5.19 > 4. Procedural Instruction > 4.2 Common nomination criteria > 4.2.13 Compliance with employment laws (reissued 12 August 2018).
[8] [2004] FCA 252 (Branson J, 18 March 2004).
[9] Nice Shoes Pty Ltd v MIMIA [2004] FCA 252 (Branson J, 18 March 2004) at [16]-[17].
[10] Nice Shoes Pty Ltd v MIMIA [2004] FCA 252 (Branson J, 18 March 2004) at [19]. See also Total Eye Care Australia v MIMA [2007] FMCA 281 (McInnis FM, 8 March 2007) and Daiwa Food Co Pty Ltd v MIMIA [2005] FMCA 1651 (McInnis FM, 16 November 2005).
Central Cleaning Supplies
1. According to information available on the Fairwork Commission website, on 21 April 2004 the nominator was ordered by the Fair Work Commission to make payment of $3939.00 as a result of an application for relief in respect of termination of employment (s170CE Workplace Relations Act 1996)
2. While the nominator’s breach of workplace laws is relevant, it does not necessarily follow from this that it cannot meet the requirement of satisfactory compliance. It is for the Member to be satisfied as to whether or not it is a satisfactory record. As per the court decision and discussion above, this does not necessarily require an unblemished record.
The Tribunal provided the information outlined in paragraph 45(2) to the nominator. The nominator advised he had no knowledge of the case and could not provide any advice to the Tribunal. The nominator advised the incident appeared to have occurred 15 years ago and it escaped his memory. The Tribunal accepts this advice. The Tribunal is not satisfied an order for payment of a sum of money as a result of an application for relief in respect of termination of employment is a breach of a law of the Commonwealth concerning workplace relations.

The Tribunal is satisfied the breach occurred many years ago and there is no evidence it is relevant to the current review application. The Tribunal does not give it any weight.
The nominator advised that the business has a satisfactory record of compliance with the workplace relations laws of the Commonwealth and of each State and Territory in which it operates its business. There is no evidence before the Tribunal that suggests otherwise. There is no evidence before the Tribunal that the nominator has been found to be in breach of any laws of the Commonwealth or a state relating to workplace relations, award breaches or underpayment of award wages.
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, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.
(A) Position is located in regional Australia
The position is located within the state of Tasmania which per IMMI 16/045 is located within regional Australia.
The employment contract provided to the Tribunal states that position is located in Hobart.
(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
The nominator provided a genuine need statement to the Tribunal (Dept Case File, doc ID: 4166457, page 7)
(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
The nominator provided information to the Tribunal as follows:
·The Labour Market Test Salary Report describes attempts to recruit an Australian citizen or Australian permanent resident through word of mouth and advertisements on and University of Tasmania’s Career Hub. Screenshots of these advertisements are included in the submissions. (Dept Case File, doc ID: 4166457, page 15)
·The applicant provided a revised employment agreement dated 27 November 2019 signed by the nominee that advised the nominee would be employed as a Retail Manager in Tasmania at a salary of $75,000 base exclusive of superannuation. Ordinary hours were Monday to Friday 8am to 5pm.
The Tribunal notes the role advertised salary is $40,000-60,000. The Tribunal notes this advertised salary outlined immediately above is significantly higher than the salary initially offered to the visa applicant ($75,000) as outlined in his signed employment contract.
(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
The relevant instrument is IMMI 15/083 which lists Retail Manager (ANZCO 142111) as a Skill Level 2 occupation. Retail Manager is described by ANZSCO as:
RETAIL MANAGERS organise and control the operations of establishments which provide retail services. Tasks include:
·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
·Ensuring compliance with occupational health and safety regulations
On application to the Tribunal the nominator provided the following, as relevant to the tasks of the nominated application:
·Retail store meeting record (TF47)
·Store checklist form completed by the visa applicant (TF50)
·Monthly random stock count completed by the visa applicant (TF51)
·Training record completed by visa applicant (TF52)
·Organizational chart which shows VA’s position as ‘Retail Support Manager – VIC’ (TF59)
The nominator also provided a chart comparing Responsibilities of Retail Manager as per Job Description Submitted on 7^th March 2017 Nomination’ and Relationship to the Retail Manager Tasks under ANZSCO code (TF58)
This chart outlined detailed descriptions and further explanations of the tasks carried out by the Retail Manager under 17 sub-headings related to the core descriptor codes in the ANZSCO code for Retail Managers. This chart outlined the role, specific tasks, responsibilities, obligations and expectations of the Retail Manger in relation to sales, staff customers, suppliers, turnover, profit levels and growth.
It is clear to the Tribunal the Retail Manager fills a critical role in the organisation of the company. The Tribunal is satisfied on the information provided by the nominator that role is primarily directed to direction and control.
It is clear from a perusal of the documents provided by the nominator the Retail Manager is charged with serious responsibilities that go to management, control, performance, development, achievement, growth and direction of all facets of the store’s business requirements.
It is also clear from the documentation outlined above there is clear corporate or head office engagement (through management and executive positions as outlined in the organisational chart and discussed at paragraph 13 above) in the management of the enterprise. In evidence the nominator advised that engagement goes to policy, systems, processes, finances, development, growth and the use or deployment of capital.
The Tribunal accepts significant corporate enterprises with numerous outlets do need Retail Managers to take overall responsibility for the proper management and direction of each outlet. It cannot be rationally accepted that the Retail Manager ignores the systems and processes of its large employer, or that the manager’s tasks are reduced to a lower level because of it.
The Tribunal is satisfied the tasks and responsibilities of the Retail Manager at Cleaning Supplies Pty Ltd in Tasmania fit squarely within the definition of Retail Manager ANZSCO 142111.
(E) The business operated by the nominator is located at that place
The Tribunal is satisfied that the business operated by the nominator is located in regional Australia.
The white pages contains a listing for a business of the same name at the stated address:
Google maps shows the business at the listed address:
(F) Regional Certifying Body advice
The applicant has provided a RCB approval from Department of State Growth, Tasmanian Government dated 17 March 2017 (TF 89).
Accordingly the requirements of r.5.19(4)(h) are met.
CONCLUDING PARAGRAPHS
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.
The Tribunal affirms the decision under review to refuse the nomination.
Mark Bishop
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).