Cooper St Tyre Centre Pty Ltd (Migration)

Cooper St Tyre Centre Pty Ltd (Migration) [2024] AATA 230 (7 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cooper St Tyre Centre Pty Ltd
CASE NUMBER:  2012988
HOME AFFAIRS REFERENCE(S):          BCC2020/1455475
MEMBER:P. Maishman
DATE:7 February 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 07 February 2024 at 3:28pm

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry stream – position of Accountant – genuine position – updated financial information – actively and lawfully operating a business in Australia – businesses expansion plans – employment for at least 2 years – employment conditions no less favourable – tasks of the position correspond to nominated occupation – decision under review set aside
LEGISLATION
Income Tax Assessment Act 1997
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 2.57, 2.72, 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 Home Affairs on 4 August 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 29 April 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(d) and so reg 5.19(4)(f) of the Regulations because the delegate was not satisfied the applicant demonstrated a genuine need to employ the identified person to work in the nominated position under their direct control.
Mr Ahmad El Makari, on behalf of the applicant, appeared before the Tribunal at a combined hearing with the nominee on 16 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Yasser Hafez.
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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal had before it a copy of the Department’s file.
The applicant gave the tribunal a copy of the delegates decision record with the review application. The applicant provided current and updated information to the Tribunal on 15 September 2023, and details of the director’s other business holdings after the hearing on 7 February 2024.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
The Tribunal had regard to the documents on the Department’s file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395; the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and Department records show the nomination application was paid.
The application identifies a need for the nominator to employ Mr Yasser Hafez as a paid employee to work in the position of Accountant (ANZSCO 221111) under the applicant’s direct control.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal, and the applicant submits it has not been subject to monitoring by the Department and or that it is subject to any investigation about possible contravention of laws. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Victoria, the relevant occupation is Accountant and the date of application is 29 April 2020.
Documents on the Department’s file confirm the nominee has undertaken appropriate tertiary education and been awarded a Master of Professional Accounting. CPA Australia has assessed the nominee to be academically suitable for migration under the ANZSCO 221111 occupation of Accountant. The nominee is not seeking to be a public practitioner and there are no specific licences or registrations required.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal, and the applicant submits it has not been subject to monitoring by the Department and or that it is subject to any investigation about possible contravention of laws. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
Department records indicate the relevant training contribution charge was paid with the application fee. There is no evidence before the Tribunal that the applicant has an outstanding nomination training contribution charge or underpayment penalty.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
Having considered the material before it, including the applicant’s financial statements, BAS statements and business registration records, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia and directly operates that business.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
There is no evidence before the Tribunal to indicate that the applicant’s business is involved in labour hire. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal notes the delegate was not satisfied the applicant had a genuine need to employ the nominee in the position of accountant. The application identifies the applicant employs five Australian citizen or permanent residents and one foreign employee. The delegate was concerned the application indicated annual salary expenditure to be less than $100,000 and the business turnover to exceed $1,000,000. The applicant’s statement to the Department was that it plans to expand its business into the wholesale market to obtain supplies from China directly. The costs of engaging professional accounting services to expand the business was more expensive than employing its own accountant.
Mr El Makari told the Tribunal he had been in the tyre business since 1994. He has four tyre businesses and plans to expand to between 6 to 10 outlets. His businesses have expanded to include mechanical services in addition to tyre supply and repair. The Covid pandemic has delayed his expansion plans however he continues to plan to source supplies wholesale from China to support his business expansion. He requires the services of an accountant on a full-time basis to advise on financial risk, taxation and legal compliance implications. The nominee is smart and trustworthy and has worked for him on a part-time basis while he was a student. The nominee understands his business plans and Mr El Makari plans to use the nominee’s skills across his range of businesses. Mr El Makari has not fully engaged the nominee in his other businesses pending the nominee having some certainty about his residence in Australia. The nominee has introduced MYOB which is saving the applicant many hours manually producing its financial documents. The nominee also controls the payroll, prepares BAS statements, and documents required in preparation for annual taxation compliance.
After hearing the applicant provided financial documents and ASIC documents confirming Mr El Makari is the director of three other tyre and auto businesses which are currently operating.
The Tribunal is satisfied the nomination application identifies a need for the nominee to be employed in the position of accountant under the direct control of the nominator and the Tribunal is satisfied that need is genuine.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
Mr El Makari and the nominee oral evidence confirming that the employment agreement given to the Department continues to apply.
The terms of the employment agreement include that the nominee be appointed upon the grant of his subclass 186 visa. The Tribunal accepts the parties’ consistent oral evidence that the nominee has been employed and will continue to be employed for at least two years. The employment agreement does not contain an express exclusion of extending the period of employment, and in fact allows for further extension. The applicant provided market research from PayScale.com and a number of job advertisements indicating a general accountant in Australia earns an average salary of $57,640. The applicant’s 2021 and 2022 financial statements support that the applicant business is profitable.
The Tribunal is satisfied the nominee will be employed full-time for at least two years; the terms and conditions of the nominee’s employment do not exclude the possibility of extending the period of employment; and the business has the capacity to employ the nominee for at least two years and pay them at the annual market salary rate for the occupation.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least $250,000 as specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than $53,900, the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
On the evidence the annual earnings in relation to the occupation will not be at least the specified amount of $250,000 and the requirements of reg 2.72(15) must be met.
The Organisation Chart for the applicant confirms there is not an Australian worker performing equivalent work. The applicant has provider Market Salary research documents, The applicant provided market research from PayScale.com and a number of job advertisements indicating a general accountant in Australia earns an average salary of $57,640. More recent advertisements suggest the annual market salary to be between $60,000 to $70,000.
The Tribunal is satisfied the salary of $62,400 offered to the nominee has been determined in accordance with the instructions in the relevant instrument IMMI18/033 and is not less than the annual earnings that would apply to an equivalent Australian worker.
For these reasons the requirements of reg 2.72(15)(c) are met.
The rate for the occupation is $62,400 which is not less than the TSMIT amount.
For these reasons the requirements of reg 2.72(15)(d) are met.
The annual salary offered to the nominee in relation to the occupation is in the range of salaries identified for the position and is not less than the rate for the occupation.
For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings will not be less than the TSMIT.
For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal that indicates the AMSR is inconsistent with the Australian labour market conditions for the occupation.
For these reasons the requirements of reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

The employment agreement indicates that the nominee’s employment conditions include leave entitlements and superannuation obligations. The Tribunal is satisfied the nominee’s employment conditions will not be less favourable than those for an equivalent Australian citizen or resident employee.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 186 visa.
Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument.
In this case, the relevant instrument is LIN 19/049 which identifies the assessing authority for the occupation of accountant (ANZSCO 221111) is CPA Australia Ltd. Exceptions to the occupation’s application include if the position is a clerical, bookkeeper or accounting clerk position (6); the position as a business that has an annual turnover of less than AUD$1,000,000 (19); and if the position is in a business that has fewer than five employees (21).
The Tribunal is satisfied the applicant is based in Victoria and conducts its work in Australia.
The nominated occupation of Accountant (ANZSCO 221111) is specified in the LIN 19/049.
ANZSCO 221111 identifies the tasks of the occupation to include:
·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.
The nominee’s duties are listed by the applicant to be:
·Assisting in formulating budgetary and accounting policies;
·Preparing financial statements for presentation to boards of directors, management;
·Preparing financial statements for presentation to Tax Agent (DD Accounting Services);
·Conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses;
·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;
·preparing taxation returns for individuals and organisations;
·introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
·Maintaining internal control systems
·Liaising with DD Accounting Services for any changes in regard Business Activity Statement, GST Reconciliation, wages, Capital Purchase, Finance Contract, new employees, EOFY adjustments, Suppliers, Sales and Closing Balances;
·Preparing cash flow forecast on a weekly basis;
·Preparing the pay monthly BAS lodgement for GST payable and PAYG withheld;
·Liaising with ATO if needed;
·Implementing accounting system and software;
·Monitoring operating costs and investigating material budget variances on a monthly basis;
·Maintain the daily cash flow receipting process, including the bank reconciliations and maintaining contact with overdue local customers;
·Preparation and payment of invoices to suppliers;
·Processing payments, Invoices, income and receipts and entering data into accounting software or databases then filing hard copies;
·Paying vendor invoices and tracking bank account balances;
·Excellent data entry skills with high level of accuracy and attention to detail;
·Preparing of Payslips for employees.
The nominee gave oral evidence describing his daily routine to be assisting Mr El Makari keep across his numerous businesses, develop strategies to improve profitability, arranging advertising and ensuring the financials are properly recorded, dealing with EFTPOS and billing and implementing software to make the finances easier to account.
The Tribunal satisfied the tasks will be performed in Australia and broadly correspond to the tasks identified in ANZSCO 221111 for the occupation of accountant.
The Tribunal is also satisfied the position is a not clerical, bookkeeper or accounting clerk position; the business has an annual turnover of more than AUD$1,000,000; and the business that has no fewer than five employees.
Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
P. Maishman
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2024] AATA 230

7 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies