CHROMAGEN AUSTRALIA PTY LTD (Migration)

CHROMAGEN AUSTRALIA PTY LTD (Migration) [2020] AATA 912 (20 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CHROMAGEN AUSTRALIA PTY LTD
CASE NUMBER:  1806393
DIBP REFERENCE(S):  BCC2016/4315334
MEMBER:Keith Kendall
DATE:20 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 March 2020 at 6:12pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – tasks to be performed in nominated position – nominee’s job description compared to ANZSCO listing – significant overlap – differences due to ANZSCO listing being generic and job description being tailored to specific appointment – position description for nominee’s original lower-level position provided to department – training benchmark – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)
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 23 February 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 21 December 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks performed in the nominated position correspond to the tasks of an occupation specified by the Minister in an instrument in writing. The Tribunal notes that the application of this criterion may have been in error as the nominated position is not located in regional Australia, hence r.5.19(4)(h)(ii) could not be satisfied. However, the specific criterion on which the delegate refused the nomination corresponds to r.5.19(4)(h)(i)(A), which, presumably, would have led to the same outcome.
The applicant appeared before the Tribunal on 12 February 2020 to give evidence and present arguments. The applicant was represented its Chief Financial Officer, Mr Richards Zaacks. The Tribunal also received oral evidence from the nominee, Ms Shosan Golan Orr.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.
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.
On the basis of the information in the Department of Immigration and Border Protection’s (the Department) file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided on the application form.
The nominated position is that of Accountant (General) (ANZSCO 221111). At the hearing, Mr Zaacks provided a detailed background to the applicant’s business (supplier of renewable energy products), which included an explanation that the applicant is the Australian subsidiary of an Israeli parent company. Prior to this, the applicant had been an independent distributor of the Israeli parent’s products in Australia, with the Israeli parent acquiring a 51% controlling stake in 2015. The applicant operates throughout Australia, with approximately 85 employees, and strongest in Victoria, with a 50 to 60% market share.
At the hearing, Mr Zaacks described the circumstances in which the nominee came to be employed in the nominated position. As noted, a controlling interest in the applicant was acquired by the Israeli parent in 2015, which led to a change of management approach and, in particular, the financial reporting requirements for the applicant. Shortly after the nominee commenced employment in a more junior position in May 2016, the incumbent accountant resigned his position due to, as Mr Zaacks described, an inability to adjust to the new procedures and requirements of the changed circumstances following the acquisition. Upon the former accountant’s resignation, the applicant offered the position of Accountant to the nominee. This timeline of events was supported by a general written submission provided by the applicant on 24 April 2019, a more specific written submission (provided in response to a request from the Tribunal at the hearing) dated 20 February 2020 and a copy of the former accountant’s resignation letter dated 30 May 2016.
As part of the restructure of the applicant’s financial reporting function, Ernst & Young was appointed as an external auditor for the applicant. The applicant provided a letter from this accounting firm dated 17 April 2019 confirming that they are engaged to perform the external audit. In particular, this letter notes that the applicant is entirely responsible for its own accounting records management and the preparation of its financial statements.
The Tribunal is satisfied that a business the size that is operated by the applicant would normally be expected to maintain its own internal accounting team. In particular, in circumstances where the organisation is not assisted in the preparation of its financial statements by an external accounting firm, such an internal accounting team would be expected to involve several individuals performing various functions.
Consequently, the Tribunal is satisfied that that there is a need for the applicant to employ a paid employee in the position of Accountant (General) under the applicant’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The applicant provided to the Tribunal a number of documents demonstrating the applicant’s past and ongoing business activities. These included:
·Current and Historical Company Extract obtained from the Australian Securities and Investments Commission (ASIC) indicating that the applicant is currently registered and has been since 19 February 2015;
·Extract from ABN Lookup obtained on 27 November 2019 indicating that the applicant has had an active Australian Business Number (ABN) since 19 February 2015 and has been registered for goods and services tax (GST) since 1 Aril 2015;
·Monthly business activity statements (BAS) comprehensively covering the period from January 2018 to December 2019; and
·Financial reports for the year ended 31 December 2015, 2016 and 2018 (noting that the 2018 financial report has comparison figures for the 2017 year).
The Tribunal is satisfied on the evidence before it that the applicant is actively and lawfully directly operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Based on the information before the Tribunal, the applicant is not engaged in labour hire activities. Therefore, the Tribunal is satisfied that this criterion does not apply to the applicant.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The nominee has been employed by the applicant since May 2016. While the initial position was more junior than the nominated position, as described above, the nominee commenced working in the nominated position shortly after commencing due to the resignation of her predecessor in that role.
At the hearing, Mr Zaacks confirmed that he expected the nominee would remain employed in the nominated position for at least two years. As well as the nominee’s accounting skills, Mr Zaacks highlighted the nominee’s unusual position as being a Hebrew speaker, which allow her to communicate effectively with management in the Israeli parent company. Whilst this particular skill does not go towards the nominee’s ability to perform her role as an accountant, it does lend credence to the submission that she will remain in her role specifically with the applicant. Coupled with the evidence that the nominee has been working in this position for over three and a half years, the submission that she will remain in this role on a full time basis for at least two further years is very credible.
The applicant provided a copy of the nominee’s most recent employment contract, dated 7 November 2018. This was updated in a letter dated 10 July 219, amending only the remuneration clause. This contract does not contain a clause expressly excluding the possibility of an extension of employment beyond two further years.
Consequently, the Tribunal is satisfied that the nominee will be employed on a full time basis in the nominated position for at least two years and the terms and conditions of this employment do not include an express exclusion of the possibility of extending the period of employment.
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 copy of the nominee’s employment contract dated 7 November 2018 referred to above contains clauses in line with general expectations regarding terms such as leave entitlements, work hours, confidentiality, notice periods regarding termination, workplace health and safety and intellectual property obligations.
With respect to remuneration, the nominee’s salary was increased to $80,000 per annum plus superannuation on 10 July 2019. In support of the submission that this remuneration is in line with what an Australian citizen or permanent resident would be paid, the applicant provided five job advertisements obtained from the Seek website in February 2020 for financial accountants working within companies located in suburban Melbourne. The advertised salaries were within the range of $70,000 to $100,000 plus superannuation, with most clustering around the $70,000 to $85,000 (plus superannuation) range. Further, an extract from the Indeed website was obtained indicating that the average accountant salary in Australia is $72,530 per annum.
Based on this information, the Tribunal is satisfied that the nominee’s remuneration is no less favourable than what would be offered to an Australian citizen or permanent resident performing the same role in the same location.
Consequently, the Tribunal is satisfied that the terms and conditions applicable to the nominated position are no less favourable than those that would be offered to an Australian citizen or permanent resident for performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no adverse information on the Department’s file nor has any adverse information been disclosed since the time of the primary decision.
The Tribunal is, therefore, satisfied that there is no adverse information in relation to the applicant or an associated person known to the Department.
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.
In response to queries from the Tribunal, Mr Zaacks indicated that the applicant had never had any employee complaints that were more than minor, that has always been settled without the need for formal action. Further, Mr Zaacks indicated that there are no present actions pending.
There is no information on the Department’s file or before the Tribunal to contradict Mr Zaacks’ evidence.
The Tribunal is, therefore, satisfied that the applicant has a satisfactory record of compliance with workplace relations laws.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059), 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.
As the nominated position is not located in regional Australia, only the first set of criteria has been considered.
The nominated position is that of Accountant (General) (ANZSCO 221111) which is listed as an occupation in Schedule 1 of legislative instrument IMMI 16/059.
In respect of Accountants generally (Unit Group 2211), ANZSCO identifies the following tasks as being included:
·Assisting in formulating budgetary and accounting policies;
·Preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies;
·Conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation;
·Examining operating costs and organisations' income and expenditure;
·Providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements;
·Providing financial and taxation advice on business structures, plans and operations;
·Preparing taxation returns for individuals and organisations;
·Liaising with financial institutions and brokers to establish funds management arrangements;
·Introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems;
·Maintaining internal control systems;
·May appraise cash flow and financial risk of capital investment projects.
In respect of Accountant (General), ANZSCO also includes “Provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements”.
A job description was included with the nominee’s employment contract that sets out the nominee’s tasks in her current position. These are identified as (errors are in original):
·Preparing yearly and quarterly financial statements for presentation to boards of directors, management, shareholders;
·Liaising and communication with external auditors – EY and helping to ensure a quality external audit procedure;
·Analyzing logistic and operating costs and expenditure (specifically responsible for purchases and optimization of local deliveries and overseas freight);
·Overseeing and liaising with our mother company and main supplier (Chromagen Israel) on:
·Reimbursement and loan interest payments;
·Transfer pricing for tax purposes; and
·Accounting of Forex hedging in according to Chromagen Israel’s accounting policy;
·Working closely with financial controller and CFO on preparation of budgetary purchasing plans, projected cash flow and forex hedge needs in accordance with Company’s policy;
·Setting up new policies and internal controls relating to stock: setting within the ERP systems, maintaining and monitoring compliance;
·Monitoring accuracy of financial information by conduction investigation on financial trends in PNL;
·Setting company specific accounting policies to maintain compliance at all levels of operation (accounting for hedging, transfer pricing);
·Oversee stock level optimization, setting up KPIs and monitoring with a target of reducing DIO; and
·Responsible for reporting to management on any odd financial trend of accounting information as requested by CFO and management.
At the hearing, Mr Zaacks confirmed that this position description provides an accurate account of the nominee’s duties in her employment. Mr Zaacks also noted that the reason for any discrepancy between the position description provided to the Tribunal and that provided with the original application reflected the fact that the nominee was originally in a more junior position with the applicant. In brief, Mr Zaacks submitted that they had received poor professional advice when submitting the nomination application and had not updated the position description to reflect the nominee’s enhanced duties. The discrepancy between the position description provided and the duties identified in ANZSCO was highlighted in the primary decision, which formed the basis of the Department’s refusal to grant the visa.

The Tribunal is satisfied that, at a minimum, there is significant overlap between the nominee’s position description provided to the Tribunal and the set of tasks identified in the ANZSCO description. The deviations can be described as emanating from the ANZSCO description being necessarily generic, whereas the nominee’s position description is clearly tailored to a specific appointment and, therefore, would be expected to be more focused. For example, ANZSCO identifies the preparation of taxation returns. Whilst this may be expected to be a common task for accountants, it is not a task that is universally undertaken by accountants and often requires additional qualifications beyond a generic accounting qualification. Consequently, precise coverage cannot be expected in all cases. In any event, with respect to this particular task, the nominee is involved in the setting of transfer prices for tax purposes, which is a high level task requiring knowledge and skill commensurate with a Skill Level 1 occupation and one that would be expected to arise in the nominee’s position, given that its main supplier is an overseas parent company.
Whilst some of the tasks in the nominee’s position description are not identified in ANZSCO, for example, involvement with hedging transactions, this reflects the nature of the applicant’s business. As the applicant is involved in cross-border transactions (for example, its main supplier being located outside Australia), which necessitates dealing in non-Australian currency, hedging is a high skill level task that would be called upon in this business. The requirement for transfer pricing expertise has been highlighted above as well.
As such, the Tribunal is satisfied that any divergence from the ANZSCO description of tasks for the role in the nominee’s position description does not derogate from a finding that the tasks to be performed align with those identified in the legislative instrument.
Accordingly, the Tribunal is satisfied that the tasks to be performed in the nominated position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for the purpose of r.5.19(4)(h)(i)(A).
Consequently, the Tribunal is satisfied that the requirement in r.5.19(4)(h)(i)(A) is satisfied.
In respect of the training requirement, the Tribunal is satisfied, based on the evidence set out above, that the applicant has operated a business for more than 12 months.
The relevant legislative instrument, IMMI 13/030, allows a nominator to meet the training requirement in one of two ways. Under Training Benchmark A, the nominator must have recent expenditure equivalent to at least 2% of its payroll allocated to an industry training fund that operates in the same industry as the business. Training Benchmark B requires that the nominator must have recent expenditure equivalent to at least 1% of its payroll in the provision of training to its employees (who must be Australian citizens or permanent residents).
The applicant has not made any claims against Training Benchmark A, therefore, the Tribunal has considered only Training Benchmark B.
IMMI 13/030 lists a number of forms of expenditure that can count towards Training Benchmark B. The relevant items in this list are as follows:
·Employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business; and
·Employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job.
It is not clear from the wording of r.5.19(4)(h)(i)(B) whether the requirement is to be taken as at the time of application or at the time of decision. Consequently, the Tribunal has considered both possibilities in the alternative.
Applying the criterion as a time of application requirement, during calendar year 2016, the applicant employed an apprentice, Mr Nathan Fletcher. In support of this formal engagement, the applicant provided a letter from the Victorian Registration & Qualifications Authority dated 8 October 2015 acknowledging the commencement of Mr Fletcher’s apprenticeship on 14 September 2015 with an anticipated completion date of 12 September 2019.
The expenditure associated with Mr Fletcher’s apprenticeship is supported by documentation including payslips provided by the applicant.
The applicant also provided information that they engaged an internal trainer, Mr Russell Farmer, who holds the position of Chief Plumber with the applicant. The applicant submitted that 20% of Mr Farmer’s time is dedicated to training other employees as a key part of his job. Based on the information provided, the Tribunal is satisfied that 20% of the expenditure associated with Mr Farmer’s employment comes within an acceptable form of expenditure that can go towards meeting Training Benchmark B.
The expenditure associated with Mr Farmer’s employment is supported by documentation including payslips provided by the applicant.
The applicant also provided invoices for expenditure with a third party, MEGT (Australia) Ltd, that provided support services for the apprenticeship and training provided. The Tribunal is satisfied that this expenditure can be counted towards meeting Training Benchmark B.
The Tribunal notes that applying calendar year 2016 results in a small non-alignment of 10 days for assessing “recent expenditure”, if recent expenditure is defined to be expenditure incurred in the 12 months preceding the application. As the application was lodged on 21 December 2016, a full 12 months would commence on 21 December 2015. The Tribunal notes that the engagements identified above precede 1 January 2016 and information preceding this date was provided that is in line with that incurred during the course of 2016. For the purposes of exigency, as the information is provided on a monthly basis, the Tribunal has assessed the expenditure incurred during 2016 against Training Benchmark B in preference to obtaining further disaggregated information as the Tribunal does not regard that disaggregated information would be material in the sense that it would potentially alter the conclusion reached against r.5.19(4)(h)(i)(B).
The applicant provided a summary table of the information supported by the documents referred to above. That table shows that for calendar year 2016, the applicant incurred payroll expenditure (wages plus superannuation) of $5,462,448. Direct apprentice costs associated with Mr Fletcher were $28,744, 20% of the direct costs for Mr Farmer were $20,131 and the third party supporting costs amounted to $21,259. These amounts sum to a total of $70,134, representing the amount of expenditure claimed going towards Training Benchmark B.
The total training expenditure of $70,134 represents 1.28% of the total payroll expenditure of $5,492,448. As the applicant has incurred greater than 1% of its payroll on relevant training expenditure, the Tribunal is satisfied that Training Benchmark B has been met as a time of application requirement.
In the alternative, applying r.5.19(4)(h)(i)(B) as a time of decision requirement, the applicant provided information relating to the employment of multiple apprentices (Mr Tereapii Taru, Mr Patrick Minkowski, Mr Rube Haeraeiti and Mr Bill Deliyiannis) supported by similar documentation as that provided in respect of Mr Fletcher identified above (i.e. letters from the Victorian Registration and Qualifications Authority, apprenticeship contracts and PAYG Payment Summaries).
The applicant also applied 20% of Mr Farmer’s costs in his role dedicated to raining employees. These costs are supported by equivalent documentation identified above relating to 2016.
The information considered in respect of this criterion as a time of decision requirement covers the period November 2018 to October 2019 inclusive. For the purposes of this review and allowing for delays associated with the review process, the Tribunal is satisfied that expenditure in this period is recent expenditure for the purpose of this criterion.
The applicant provided a summary table of this information. That table shows for the period November 2018 to October 2019, total costs relating to the apprentices (salary and superannuation) amounted to $194,056. Mr Farmer’s costs for this period amounted to $21,021 (being 20% of his total remuneration of $105,105).
The table claimed a further $10,225 in “other staff training”. However, as only a general description of this training was provided, was not supported by documentation and is not material to the decision in that it would not change the conclusion drawn, this information has not been considered.
The above amounts taken into consideration sum to a total of $215,077, which the Tribunal has considered as representing the amount of expenditure counting towards Training Benchmark B.
The total payroll expenditure for this period amounted to $12,717,387. Expressed as a percentage of this figure, the applicant has incurred recent expenditure relating to training equivalent to 1.69% of its total payroll. As the applicant has incurred greater than 1% of its payroll on relevant training expenditure, the Tribunal is satisfied that Training Benchmark B has been met as a time of decision requirement.
As such, the Tribunal is satisfied that the applicant has met the training benchmark expenditure requirement in r.5.19(4)(h)(i)(B) whether this criterion is applied as a time of application or a time of decision requirement.
Therefore, the Tribunal is satisfied that the applicant satisfies the requirement in r.5.19(4)(h)(i)(B).
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Keith Kendall
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).

[2020] AATA 912

20 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice