CORAL COAST DISTRIBUTORS (CAIRNS) PTY LTD (Migration)

CORAL COAST DISTRIBUTORS (CAIRNS) PTY LTD (Migration) [2020] AATA 2934 (26 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CORAL COAST DISTRIBUTORS (CAIRNS) PTY LTD
CASE NUMBER:  1912646
HOME AFFAIRS REFERENCE(S):          BCC2018/2273780
MEMBER:Peter Emmerton
DATE:26 May 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 May 2020 at 12:59pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Personal Assistant – genuine need – coordination of key tasks – travel requirements of the nominator – substantial academic and experiential qualifications – position cannot be filled locally – challenges of finding and retaining a suitably qualified and experienced individual – location and travel requirements – demands of the job and hours of the role – extremely harsh climatic conditions – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2019 to reject the applicant’s application for approval of the nomination of a position under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 26 May 2018. The requirements for the approval of the nomination of a position in Australia are found in r.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: r.5.19(3)(a). If any of the requirements are not met then the application must be refused: r.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 r.5.19(9)(12)(c) of the Regulations because the delegate was not satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is in, or would move to, the local area concerned.
The applicant, represented by Mr Jamie Hughes Morris, Managing Director, appeared before the Tribunal on 26 May 2020 in a combined hearing with MRT file ref.1917129 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Caroline Biy, the visa applicant. The Tribunal found all those presenting evidence to be credible and they appeared to answer questions in an open and honest manner without obfuscation.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
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 r.5.19(4) and the stream specific requirements set out in r.5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – r.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 r.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 r.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 (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: r.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, with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (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) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997) 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.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
The Tribunal finds the application was lodged electronically in accordance with the approved form 1395 (Internet). The position was identified and a person was identified in relation to that position. An occupation was identified in relation to the position as was the subclass and stream to which the nomination relates. The nomination was made under the RSMS Direct Entry stream and therefore as per r.5.37 no fee is payable.
The application has 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 (the Act).
As the nomination was made before 12 August 2018 the application was not required to be accompanied by a nomination training contribution charge nor identify the annual turnover.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in r.5.19(2) and that r.5.19(4)(a) is met.
No adverse information known to Immigration – r.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.
‘Adverse information’ is defined by r.1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s.95A of the Corporations Act 2001), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s.5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in r.1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in r.1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of bother of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(b) is met.
Mandatory licencing, registration and memberships – r.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 the Northern Territory, the relevant occupation is Personal Assistant, ANZSCO 521111 and the date of application is 26 May 2018. In this instance the mandatory license or registration provisions stated in 5.19(4)(c) are not relevant.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(c) is met.
Satisfactory compliance with employment laws - r.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 that the applicant has anything but a satisfactory record 5.19(4)(c)
Given the above findings, the Tribunal is satisfied that r.5.19(4)(d) is met.
Actively and lawfully operating business – r.5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The Tribunal has been provided with a range of Business Tax Returns, and Profit and Loss Statements, including those produced for FY 2019 and FY 2018, all of which correlated. The Tribunal also researched ASIC Registration details. It checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(a) is met.
Labour hire businesses – r.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. The Tribunal finds that 5.19(9)(b) is not relevant to the current nomination as there is no evidence before it to demonstrate the business activities include those related to labour hire to other unrelated businesses.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(b) does not apply.
Genuine need for employment – r.5.19(9)(c) and r.5.19(9)(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 r.5.19(9)(d) requires this need to be genuine.
The Tribunal has had regard to the substantial diverse business entity spread across 2 States and Territories with 6 active retail outlets. Evidence has been provided that demonstrates the nominator’s regular and substantial international travel associated with participation in Trade Fairs and product sourcing. It accepts the written and verbal statements that a number of the key components associated with the role of Personal Assistant are coordination of key tasks associated with the owners of the business and coordinating and liaising the 6 stores and their management on behalf of the owners. It was also stated that the visa applicant assists in the processes associated with the recruitment of staff.
Evidence was provided at the hearing that the visa applicant travels every month or two to each of the outlets and stays for several days in each location. Her main duties include assisting the local General Managers in each outlet in administrative and compliance tasks and preparing written and verbal reports on the operations for the Managing Director. This reliance upon the visa applicant assists him to minimise travel between the stores and focus upon international travel demands associated with attending Trade Shows and undertaking buying trips. The Tribunal notes that the substantial academic and experiential qualifications possessed by the visa applicant are likely to greatly assist her in the specified tasks.
This is greatly amplified by the travel requirements of the nominator. The Tribunal is satisfied that this is a genuine key role necessary for the smooth and efficient operation of the current business structure and will assist in the future planned substantial expansion as discussed by the nominator in the hearing.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(c) and (d) are met.
Future employment – r.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, r.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, r.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, r.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: r.1.03.
The Tribunal has perused the signed employment contract dated 26 May 2018 and associated addendum which states annual remuneration package as $56,000 plus the 9.5% Superannuation Guarantee. It is satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years. It was given verbal evidence in the hearing that the annual salary is now $59,000 plus $5,000 - $6,000 annual performance bonuses.
The Tribunal further notes that the terms and conditions of the identified person’s employment does not include an express exclusion of the possibility of extending the period of employment.
The Tribunal notes that the business appears to have very substantial revenues and proportionally aligned and growing substantial profit. ATO Tax Returns and correlating BAS statements for the business show that the revenues can easily sustain the ongoing employment of the visa applicant. The Tribunal has considered the current circumstances of the Covid 19 pandemic and has formed a view that whilst it may have some immediate impact upon revenues and profit, the nature of this diverse business and associated client base should not impact materially in the medium to long term.
Evidence was proffered verbally during the hearing, by the nominator, as to current expansion and future expansion plans of up to 10 outlets within an estimated 2-3-year period. At least 1 additional outlet is imminent as planning and logistics are well advanced.
The Tribunal accepts as fact the salary ‘PayScale’ evidence and is satisfied that the remuneration package falls within the mupper-quartiles for similar roles. In addition, the Tribunal used popular employment websites to research current market salaries for similar roles in the Northern Territory. It is satisfied that the nominee’s ‘annual market salary rate’ is equivalent to 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: r.1.03.
The growth of the nominating entity in a competitive and complex market, coupled with evidence of the organisation having multiple income streams and business units attests to its’ ability to employ the visa applicant. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.
Given the above findings, the Tribunal is satisfied that r.5.19(9)(e), (f) and (g) are met.
Annual earnings – r.5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in r.2.72(15) must be met, applying r.2.72(15) and (16) as if r.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 the amount specified in the instrument 18/033 ‘TSMIT’. Regulation 2.57A provides for the meaning of ‘earnings’. Where r.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 18/033 ‘TSMIT’: r.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: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument 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: r.2.72(15)(d) and r.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 r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa). However, in this case, the power under r.2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in r.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: r.2.72(15)(f) and r.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: r.2.72(15)(g).
The nominee’s annual earnings, according to the signed employment contract dated 26 May 2018 were $56,000 plus 9.5% Superannuation Guarantee. This was verified by verbal evidence presented at the hearing and correlates to the nominees Pay Slips presented to the Tribunal prior to the hearing. The Tribunal was informed by both the nominator and the nominee that her annual salary is now $59,000 plus 9.5% Superannuation and an approximately $500 monthly performance bonus, equating to $5,000 - $6,000 on an annual basis.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.

Given the above findings, the Tribunal is satisfied that r.5.19(9)(h) is met.
No information to indicate less favourable employment conditions – r.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.
There is no evidence before the Tribunal to indicate that there is 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. This correlates with the nominee’s employment contract and oral testimony given in the hearing
Given the above findings, the Tribunal is satisfied that r.5.19(9)(i) is met.
Tasks correspond to specified occupation – r.5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in r.5.19(10) or r.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 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: r.5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: r.5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under r.5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: r.5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: r.5.19(12)(f).
The position associated with this nomination is located in Darwin, Norther Territory and is therefore located in a place in Regional Australia. The Tribunal accepted written submissions prior to the hearing and verbal testimony at the hearing supporting this accepted fact. Additional corroborating evidence was obtained from a range of business documents provided to the Tribunal.
The business operated by the nominator has retail outlets in both the Northern Territory and Northern Western Australia. The head office is located in Darwin, Northern Territory where the Managing Director is principally domiciled when in Australia. The Tribunal accepted written submissions prior to the hearing and verbal testimony at the hearing supporting this accepted fact. Additional corroborating evidence was obtained from the ASIC web site and a range of business documents provided to the Tribunal including ATO Tax Returns and financial records.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(9)(12)(c) of the Regulations because the delegate was not satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is in, or would move to, the local area concerned. The Tribunal has formed a different view and accepts that the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned. The Tribunal notes that a substantially more comprehensive suite of evidence was presented to it than was given to the delegate in the original application.
Evidence was presented to the Tribunal regarding the recruitment process including personal and professional networks, on-line job sites, and print media. Proof of advertising was provided and the subsequent challenges of finding and then retaining a suitably qualified and experienced individual in an isolated regional setting was explained prior to the hearing and verbally at the hearing. The Tribunal acknowledges that there are a large number and range of related roles readily available in the Northern Territory, Western Australia and throughout Australia.
The Tribunal accepts the verbal statement by the nominator that approximately 10 applicants initially applied for the role, all but 3-4 declined to continue with their application because of the location and travel requirements.
The demands of the job and hours of this role may not have proven overly attractive to some candidates. In the Tribunal’s experience, the relatively isolated location in Darwin, Northern Territory may also provide a negative employment circumstance further limiting the potential candidate pool. The Tribunal reflects upon the additional challenges associated with the distinctive social structure of the region, the extreme isolation and the extremely harsh climatic conditions endured by the residents, all of which may make recruitment and retention more challenging.
The Tribunal is cognisant that Darwin has a very large transient population with a constant flow of people moving through the region, many of whom are highly skilled, accept employment but stay for relatively short periods of time. This is in part due to the “wet season” which can be extremely uncomfortable and the fact that it is a convenient working holiday bridge to Asia or other parts of northern Australia. It is an accepted fact that employers find it extremely difficult to recruit and retain long term employees with a genuine desire to stay in Darwin for an extended period of time.
The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under r.5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: r.5.19(12)(d) and (e).
The Tribunal has reviewed both the relevant descriptors stipulated in ANZSCO 521111 for Personal Assistant and the stated substantial duties and responsibilities of the visa applicant. It has, in addition perused the visa applicant’s Resume’ and is satisfied that the combination of formal qualifications which includes a recent Master of Business Administration, combined with extensive and varied international business and banking experience demonstrates an appropriate combination of relevant competencies and attributes desirable in this role. It is also aware that the role of Personal Assistant is a unique role as there must exist a degree of professional and personal compatibility between the individuals due to the trust required and close working relationship.
Additionally, the substantial opening hours across different time-zones of the combined businesses coupled with the number of staff across multiple unique isolated locations, clearly indicates the need for a Personal Assistant to support the Managing Director. These circumstance are likely to be exacerbated by the travel commitments and associated international buying trips undertaken regularly by the owner of the business. This would by necessity most likely lead to a substantial degree of autonomy and flexibility of tasks being associated with the role, as is reasonably expected of a Personal Assistant in an ANZSCO level 2 designated role.
The position of Personal Assistant, ANZSCO 521111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to Form 1404 issued by an RCB, (Department of Trade Business and Innovation, NT), dated 22 February 2019 and is satisfied that the applicant has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: r.5.19(12)(f).
Given the above findings, the Tribunal is satisfied that r.5.19(12) is met. Accordingly, r.5.19(9)(j) is also 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.
Peter Emmerton
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:
(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
(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.
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;
(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;
(c)either:
(i)the nominator’s business has operated for at least 12 months, and the nominator fulfilled the requirements for the training of Australian citizens and Australian permanent residents that are specified in a legislative instrument made by the Minister for the purposes of this subparagraph; or
(ii)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for fulfilling the requirements specified in the instrument mentioned in subparagraph (i).
(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.

[2020] AATA 2934

26 May 2020

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