Chris Talihmanidis (Migration)

[2018] AATA 1922

Chris Talihmanidis (Migration) [2018] AATA 1922 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chris Talihmanidis

CASE NUMBER:  1709790

DIBP REFERENCE(S):  BCC2016/3191859

MEMBER:Mary Sheargold

DATE:4 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 04 April 2018 at 12:39pm

CATCHWORDS
Migration – Nomination refusal – Regional Sponsored Migration Scheme – Direct Entry Nomination stream – Genuine need for paid employee – Cook – All the requirements of r.5.19(4)(h) are met – Decision under review set aside

LEGISLATION
Fair Work Act 2009, cl 8.1,s 117
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19, 5.37
Superannuation Guarantee (Administration) Act 1992

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 April 2017 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).

2. The applicant applied for approval on 26 September 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 (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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Regional Sponsored Migration Scheme (RSMS) Direct Entry Nomination stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the applicant had not identified a need for the nominator to employ a paid employee to work in the position under the applicant’s direct control.

5. The Tribunal was informed that the applicant is 84 years of age. He operates his business as a sole trader.  His Restaurant Manager, Mrs Maria Kapsali, appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. The Tribunal spoke with the applicant directly and confirmed his consent for Mrs Kapsali to give evidence and present arguments on his behalf.  Mrs Kapsali had made written submissions to the Tribunal on 27 February 2018 stating she was authorised to make submissions of behalf of the applicant.

6. 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

7. 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.

8. The delegate’s decision noted that “other than the nomination form, no documents were submitted in support of this nomination by the applicant.”  At the hearing, Mrs Kapsali gave evidence that the applicant had engaged the services of a migration agent to lodge the nomination application, and had provided documents in support of the nomination.  Mrs Kapsali said that the applicant had now lost contact with that migration agent and was not informed as to why the applicant’s supporting documents had not been provided to the Department.

9. In anticipation of the hearing, the Tribunal requested the applicant provide assorted information to demonstrate that he meets the criteria for approval of the nomination.  Prior to the hearing, the applicant provided some of this information.  Additional documents were provided to the Tribunal after the hearing.

   The application is compliant: r.5.19(4)(a)

10. 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.

11. The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. Consistent with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The applicant has identified a need for him to employ a paid employee to work in the position of Sous Chef at his restaurant in Apollo Bay under his direct control.

12. 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)

13. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

14. The Tribunal has reviewed extracts from the Australian Business Register provided by the applicant, and finds that the applicant is actively and lawfully operating his business registered with the Australian Securities and Investments Commission (ASIC).  He has an Australian Business Number, is registered for GST, and operates under a Victorian trading name, Chris’s Beacon Point Restaurant and Villas.

15. Based on the documentation provided by the applicant to the Tribunal, including Business Activity Statements (BAS) for the January-March and April-June quarters of the 2016-17 financial year, and the October-December 2017 quarter, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

16. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

17. 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. 

18. Mrs Kapsali gave oral evidence that the nominee has been employed directly within the applicant’s business since October 2016.  Further, the Tribunal has considered the terms of the Letter of Engagement made between the applicant and the nominee dated 2 March 2017 (Letter of Engagement) provided to the Tribunal prior to the hearing and will come into effect when the nominee is granted a Subclass 187 visa.  The Letter of Engagement provides that the nominee will work as a “Cook” (sic) at Chris’s Beacon Point Restaurant and Villas.

19. The Tribunal is satisfied that the nominated position of Sous Chef is a permanent full-time position within the applicant’s business and that it does not involve the nominee being on-hired to any unrelated business. Accordingly, the requirement in r.5.19(4)(e) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

20. 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.

21. In assessing this criterion, the Tribunal has considered documents submitted to it by the applicant.  These documents include the Letter of Engagement signed by the nominee received prior to the hearing, and a letter to the Tribunal from the applicant submitted after the hearing in response to the Tribunal’s request for clarification around the applicant’s capacity to offer the nominee employment for at least 2 years full time.  The Tribunal has also considered the applicant’s written submissions dated 27 February 2018 (prepared by Mrs Kapsali).

22. The Letter of Engagement states that the contract length is for two years.  The Tribunal finds that the Letter of Engagement does not expressly exclude the possibility of an extension.  In his submission dated 27 February 2018, the applicant stated that the nominee would be employed “for at least 2 years and beyond.”  The Tribunal accepts the applicant’s submission.

23. Mrs Kapsali provided oral evidence to the Tribunal that the applicant’s son had recently returned to Australia to become more involved in the applicant’s business, and that the applicant was looking to restructure his business to facilitate this.  The applicant’s letter to the Tribunal dated 26 March 2018, received after the conclusion of the hearing, states the applicant’s intention to restructure his business “in the near future,” “as a precaution to protect the livelihood of all my family and employees should anything happen to me.”  The Tribunal accepts the applicant’s submission in this regard.

24. Based on the Letter of Engagement, the applicant’s written submissions dated 27 February 2018, and the applicant’s letter dated 26 March 2018, the Tribunal is satisfied that the nominee will be employed in the position of Sous Chef on a full-time, permanent and ongoing basis for at least 2 years on terms that do not expressly exclude the possibility of an extension.

25. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

26. 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.

27. The Tribunal has considered the Letter of Engagement between the applicant and the nominee dated 2 March 2017 and signed by the nominee.  Clause 5.1 of the Letter of Engagement sets out the nominee’s rate of pay of $26.00 per hour being set in accordance with Level 5 of the “Restaurant Industry Award 2012/2013 (sic)”, with reference to modern award number MA000119.  The Tribunal has reviewed MA000119 Restaurant Industry Award 2010 (Award) and notes the minimum hourly rate for a grade 5 level cook (the highest level covered by the Award) is $23.23 per hour.   

28. Further, clause 5.3 of the Letter of Engagement states that the nominee’s remuneration will be reviewed annually and may be increased at the applicant’s discretion.  The application form submitted to the Department notes that the guaranteed annual earnings for the nominee will be $52,328.00, which is in excess of the minimum rate in the Award set at $882.80 per week, calculated as $45,905.60 per annum.  Accordingly, the applicant’s proposed rate of pay for the nominated position is no less favourable than that would be provided to an Australian citizen or permanent resident performing equivalent work.

29. Clause 5.2 of the Letter of Engagement states that the applicant will make superannuation payments on the nominee’s behalf in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). Clause 6 of the Letter of Engagement states that the nominee will be entitled to leave in accordance with the Award and with the National Employment Standards. The termination provisions set out in clause 8 of the Letter of Engagement are based on the requirements set out in the Fair Work Act 2009 (Cth) (Fair Work Act). The Tribunal has reviewed the requirements of section 117 of the Fair Work Act and notes that the table set out in clause 8.1 of the Letter of Engagement mirrors the requirements set out in section 117(3) of the Fair Work Act.

30. Having considered all of the evidence before it, the Tribunal finds that the applicant will provide the nominee with terms and conditions of employment that are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

31. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

32. 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.

33. There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant or his business.

34. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

35. 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.

36. In his written submissions dated 27 February 2018, the applicant states that he has operated his business lawfully for many years and has not received any contravention order that would render him ineligible to nominate an employee for a permanent visa.

37. Further, after the hearing, the applicant provided the Tribunal with group certificates for each of his employees over the 2015-16 and 2016-17 financial years, as well as copies of statements from QuickSuper showing payment of his monthly compulsory superannuation contributions for each of his employees from 1 October 2015 to present.  The applicant also provided the Tribunal with a copy of his Rateable Remuneration Submission to CGU Workers’ Compensation (VIC) Limited for the 2017-18 and 2016-17 financial years, as well as notices of premiums payable for the 2016-17 financial year.

38. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position, regional location, RCB certification: r.5.19(4)(h)

39. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. As noted above, the applicant’s application was made under the RSMS Direct Entry stream. Accordingly, the Tribunal has assessed the application against the criteria in r.5.19(4)(h)(ii) of the Regulations, as at the time of lodgement of the nomination application, which required that:

    ·the position and nominator’s business is located in regional Australia;

    ·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 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 tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing; and

    ·a regional certifying body has advised the Minister about certain matters relating to the position.

    Position and nominator’s business is located in regional Australia: r.5.19(4)(h)(ii)(A) and (E)

40. The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that “regional Australia” is defined by legislative instrument. The Tribunal has considered the current legislative instrument, Migration (IMMI 18/037: Regional Certifying Bodies and Regional Postcodes) Instrument 2018 (IMMI 18/037), that specifies the postcodes classed as “regional Australia” in accordance with r.5.19(16). However, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018.[1]  The Tribunal notes that IMMI 18/037 repealed the previous instrument, Migration (IMMI 17/059: Regional Certifying Bodies and Regional Postcodes) Instrument 2017 (IMMI 17/059).[2] 

    [1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”

    [2] See IMMI 18/037, Schedule 4.

41. Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application.  That legislative instrument is Regional Certifying Bodies and Regional Postcodes 2016/045 (IMMI 16/045). Schedule B of IMMI 16/045 sets out a range of postcodes in the State of Victoria that constitute “regional Australia”, and that range covers all postcodes from 3211 to 3334 inclusive.[3] 

    [3] For completeness, the Tribunal notes that postcodes 3211 to 3334 inclusive continue to be listed as qualifying as “regional Australia” under Schedule 2 of IMMI 18/037. However, IMMI 18/037 only applies to nomination applications lodged on or after 18 March 2018. Postcodes 3211 to 3334 inclusive were also listed as qualifying as “regional Australia” in Schedule 2 of the predecessor to IMMI 18/037, IMMI 17/059.

42. Based on the evidence provided, the Tribunal is satisfied that the applicant’s business Chris’s Beacon Point Restaurant and Villas is operating at 280 Skenes Creek Road, Apollo Bay, Victoria, 3233, and that the nominee is currently working in the nominated position at the applicant’s business in this location.  The postcode 3233 falls within the range of postcodes 3211 to 3334 set out above.

43. The Tribunal is therefore satisfied that the position and the business operated by the applicant are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)

44. The applicant’s written submissions dated 27 February 2018 argue that the applicant’s business continues to grow “despite the current economic crisis”, that no staff have been retrenched, and that in fact, staffing levels have increased.  Mrs Kapsali provided oral evidence to the Tribunal that while the restaurant kitchen currently employs a total of 5 chefs (a head chef, two sous chefs and two chefs de partie), it actually requires 6 or 7.  Mrs Kapsali stated that in addition to the 5 chefs currently employed, the applicant, at the age of 84 years, still works in the kitchen on a daily basis, arriving at the restaurant at 6:00am every day to bake bread and assist with preparation tasks.  Mrs Kapsali submitted that if the nominee’s visa application was refused, the business would be put under strain, especially moving into the colder months where recruitment is more difficult.

45. The detailed profit and loss statements provided by the applicant for the financial years ending 30 June 2016 and 30 June 2015 indicate that business is stable and that net profits before income tax have increased from $138,616 at 30 June 2015 to $155,166 at 30 June 2016.  BAS statements provided to the Tribunal after the hearing demonstrate quarterly trading profits similar to the levels shown in previous profit and loss statements provided to the Tribunal. 

46. The Tribunal is therefore satisfied that the applicant has demonstrated a genuine need for him to employ a paid employee to work in the position of Sous Chef under his direct control.

    Position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place: r.5.19(4)(h)(ii)(C)

47. During the hearing, Mrs Kapsali presented evidence to the Tribunal regarding the applicant’s efforts to recruit for two Chef de Partie positions.  She stated that the applicant had placed advertisements in the local newspaper and on the website Gumtree.  After the hearing, the Tribunal was provided with copy for an advertisement listed on 15 September 2016 seeking to recruit for the positions.  The Tribunal was informed that no Australian citizen or Australian permanent resident applied for the position, and the applicant has provided copies of the 4 curricula vitae received from applicants in response to its advertisement.  Mrs Kapsali stated that the nominee and one other applicant were recruited for positions as Chef de Partie, but soon after commencing employment with the applicant, they were promoted to Sous Chef in recognition of their advanced skills and abilities.

1. The applicant’s written submissions state that the applicant has had ongoing difficulty recruiting local applicants, and states that he has received no applications from “interstate applicants” as they find the applicant’s business “far from the main City Centre of Victoria.”  The applicant further submits that previous employees have “left the job because our business is located 15 kilometres from Apollo Bay with no public transport.” 

2. Based on the evidence provided, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the applicant’s business in Apollo Bay.

   Tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing: r.5.19(4)(h)(ii)(D)

3. The applicable instrument specified for this purpose is IMMI17/058. Clause 7 of the Instrument specified that as well as the occupation being listed in Schedule 1 of the Instrument, it must also be listed in ANZSCO and has an ANZSCO skill level of one, two or three.

4. The application is for a Chef, ANZSCO code 351311, with a skill level of 2.  This occupation is listed in Schedule 1 of the Instrument.  The tasks, skill level and specialisation titles for the ANZSCO descriptor for Chef 351311 are set out below:

   Tasks:

   ·     planning menus, estimating food and labour costs and ordering food supplies;

   ·     monitoring quality of dishes at all stages of preparation and presentation;

   ·     discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff;

   ·     demonstrating techniques and advising on cooking procedures;

   ·     preparing and cooking food;

   ·     explaining and enforcing hygiene regulations;

   ·     may select and train staff;

   ·     may freeze and preserve foods.

   Skill Level:

   ·     ANZSCO Skill Level 2.  Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below. 

   ·     In Australia: AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2).

   ·     At least three years of relevant experience may substitute for the formal qualifications listed above.  In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Specialisation Titles:

   ·     Chef de Partie

   ·     Commis Chef

   ·     Demi Chef

   ·     Second Chef

   ·     Sous Chef

5. After the hearing, the applicant provided the Tribunal with a copy of the position description for Sous Chef, signed by the nominee and dated 1 March 2017 (Position Description).  The Position Description describes the main duties, responsibilities and skills as:

   ·     General cooking duties including pastry cooking, with particular regard to Breakfast service, Larder and Desserts;

   ·     Supervision, training and co-ordination with other kitchen staff;

   ·     Ordering and stock control;

   ·     Receipt of deliveries;

   ·     Compliance with food safety standards and OHS standards;

   ·     Plan, collect, organise food and commodities for menus;

   ·     Prioritise menus and recipes;

   ·     Read recipes, menus, orders;

   ·     Prepare and use specialised kitchen equipment;

   ·     Plan and organise logical work sequences within time restraints;

   ·     Communicate and work cooperatively with other staff members of the kitchen team and food service staff;

   ·     Identify and respond to conflict situations within kitchen environment;

   ·     Maintain product, service and market knowledge;

   ·     Demonstrate a high standard of personal hygiene;

   ·     Ensures high standards of sanitation and cleanliness are maintained throughout the kitchen area; and

   ·     Performs miscellaneous job-related duties as assigned.

6. The Tribunal has considered whether the duties, responsibilities and skills set out in the Position Description correspond to the tasks of a Chef as set out in ANZSCO 351311. While the wording in the Position Description does not mirror the wording in ANZSCO 351311, the Tribunal is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of an occupation at ANZSCO Skill Level 2. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.

   Regional certifying body advice about certain matters relating to the position: r.5.19(4)(h)(ii)(F)

7. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 22 March 2017 provided by the applicant, and notes that it was completed by a representative of the Warrnambool City Council.  The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and notes it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.  Warrnambool City Council is listed as a Regional Certifying Body (RCB) in Schedule A of IMMI 16/045.[4]

   [4] For completeness, the Tribunal notes that Warrnambool City Council continues to be listed as an approved RCB in Victoria under Schedule 1 of IMMI 18/037. However, IMMI 18/037 only applies to nomination applications lodged on or after 18 March 2018. Warrnambool City Council was also listed as an approved RCB in Victoria under Schedule 1 of IMMI 17/059.

8. On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 22 March 2017 provided, the Tribunal is satisfied that the RCB has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The RCB stated that:

   ·     there is a need for a paid employee in the nominated position within the business activities of the nominating employer;

   ·     the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and

   ·     the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.

9. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice.

10. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

    Summary

11. It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.

    Conclusion

12. 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

13. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Mary Sheargold
    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).