Derrimutroadclinic Pty Ltd (Migration)

Derrimutroadclinic Pty Ltd (Migration) [2023] AATA 2883 (1 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Derrimutroadclinic Pty Ltd
REPRESENTATIVE:  Mrs Elaine Nunez (MARN: 1172914)
CASE NUMBER:  2005854
HOME AFFAIRS REFERENCE(S):          BCC2019/4649547
MEMBER:Amanda Mendes Da Costa
DATE:1 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 1 September 2023 at 10.00am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – registered nurse – full-time employment for at least two years – updated employment contract provided – salary now calculated in accordance with award – tasks of position – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), rr 2.72, 5.19(3), (9)(f)
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 March 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 17 September 2019. 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(4)(f) of the Regulations because the applicant had not demonstrated that the identified person will be employed on a full-time basis in the nominated position for at least two years.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review.
The documentation provided to the Tribunal for the purpose of the review included the following:
·ASIC extracts for the applicant company.
·Australian Business Number (ABN) details.
·Company taxation returns for the years ended 30 June 2021 and 2022.
·Financial statements (including profit and loss statements) for the 2021 and 2022 financial years.
·Company taxation returns for the 2021 and 2022 financial years.
·Business activity statements (BAS) from April 2021 to March 2023.
·Organizational charts.
·Position description.
·Statement of genuine need.
·Employment contract dated 7 July 2019 and updated employment contract dated 23 June 2023.
·Evidence of current nursing registration of the nominee.
·Evidence of payment of training nomination fee.
·Nominee’s recent payslips.
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.
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.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019. In this case, the application was made on 17 September 2019 and the subclass identified in the application is Subclass 186.
Having regard to the application form and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met and that the applicable fee has been paid. The records of the Department confirm that the required nomination training contribution charge has been paid by the applicant and the application identified the ‘annual turnover’ of the business.
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 which indicates that there is any adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
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 Registered Nurse (Perioperative) ANZSCO Code 254423 and the date of application is17 September 2019.
The Tribunal is satisfied that it is mandatory in the State in which the position is located (Victoria) for a person to be registered with AHPRA[1]. Records kept by that Agency show that the nominee is registered as a nurse with her registration commencing on 19 September 2018 and expiring on 31 May 2024.
[1] Australian Health Practitioner Regulation Agency records extracted 1 September 2023.
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 which indicates that the applicant has an unsatisfactory 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.
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.
Based on information in the Department’s file (including the Tax Invoice/Receipt dated 17 September 2019 issued by the Department), the Tribunal is satisfied that all required payments have been made by the applicant and there are no outstanding debts owed by the applicant to the Department.
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.
The ASIC documents, ABN registration, financial documentation (including taxation returns, BAS and profit and loss statements) indicate that the applicant is actively and lawfully operating a business in Australia.
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.
The applicant operates a medical clinic located on Tarneit, Victoria. The clinic which is open seven days per week employs 12 medical practitioners together with administrative ancillary health staff including a physiotherapist, dietician, psychologist, diabetes educator and sleep and respiratory specialist. The nominee is employed by the applicant on a full-time basis as a nurse.
The Tribunal is satisfied that the nature of the business indicates that the nominator is not involved in labour hire activities and therefore 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 accepts that the nominee tasks include providing nursing care to the clinic’s patients before and after surgery, immunisations, assisting with triage, data management, diagnostic services, chronic disease management and assisting the medical practitioners with clinical procedures and maintaining clinical documentation.
The Tribunal also accepts that the position involves testing patients for Covid-19, ensuring cleaning and health protocols are implemented to prevent the infection of patients with and prevent further outbreaks of Covid-19.
Given the nature of the health services provided to the clinic’s patients and the role of the nominated occupation in facilitating such services, the Tribunal is satisfied that the applicant has identified a need for an identified person to be employed in the position, under the direct control of the nominator and that this need is genuine.
The Tribunal further notes that the nominee has been employed by the applicant in the nominated occupation since January 2019 when she commenced work in a casual basis and since July 2019 as a full-time employee.
Accordingly, the Tribunal finds 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.
The Tribunal has considered the employment contract and updated employment contract and based on this documentation finds that the nominee will be employed full-time (38 hours per week) for at least two years and the terms and conditions of the nominee’s employment will not exclude the possibility of extending the period of employment. The Tribunal further notes that the proposed salary is $74,100 per annum.
The Tribunal notes that in the application form, the applicant nominated a AMSR of $54,695 which was calculated in accordance with the relevant industrial award[2]. The applicant also produced job advertisements for the position of Registered Nurse on the platform Seek with comparable advertised annual salaries to the nominated AMSR. The Tribunal notes that the updated employment contract shows that the proposed salary is now calculated in accordance with the provisions of the Nurses Award 2021 which provides a salary figure of 37.50 per hour. On the basis of a 38 hour week , this equates to a salary of $74,100 per annum.
[2] Nurses Award 2010.
There is no evidence before the Tribunal to indicate that the AMSR for the occupation as determined is inconsistent with Australian labour market conditions relevant to 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 the amount 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 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).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The applicant has provided evidence that it does not have an Australian worker performing equivalent work to the nominee. The instrument provides that, in these circumstances where there is an equivalent fair work instrument, a state industrial instrument or transitional instrument applicable to the nominated occupation, the AMSR is the annual earnings of an equivalent worker specified in those instruments. The applicant has provided evidence that there is an award applicable to the nominated occupation, namely the Nurses Award 2021.The applicant has produced evidence that the AMSR of an equivalent Australian worker, calculated by reference to the relevant provisions of the applicable Award at the time of application and in accordance with the current Award which amounts to $54.695 and $74,100 respectively. The Tribunal is satisfied that the applicant has determined the AMSR in accordance with the current relevant Award (the Nurses Award 2021) at $74,100 per annum.
For these reasons the requirements of reg 2.72(15)(c) are met.
As the TSMIT is $53,900, the proposed salary of $74.100 per annum (exclusive of superannuation) plus paid overtime, that has been offered to the nominee exceeds this amount. For these reasons the requirements of reg 2.72(15)(d) are met.
The Tribunal is satisfied that this remuneration arrangement gives to the nominee a salary in excess of the minimum required under the relevant award. For these reasons the requirements of reg 2.72(15)(e) are met.
There is no evidence before the Tribunal that the nominee has not been offered any non-monetary benefits as part of the employment contract. Therefore, the proposed remuneration represents a cash figure and the annual earnings will still be above the TSMIT.
For these reasons the requirements of reg 2.72(15)(f) are met.
The Tribunal is satisfied that there is no information before Immigration to indicate that the AMSR for the nominated position is inconsistent with Australian labour market conditions relevant for the occupation of Registered Nurse. 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.

Based on the evidence before it, including information from the Department’s file and the organizational charts, statement of genuine need, position description and updated employment contract provided to the Tribunal, the Tribunal is satisfied that there is 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 as the nominee.
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 IMMI 19/049.
Further, for nominations made before 12 August 2018, reg 5.19(10)(c) requires that certain specified training requirements are met.
Having considered the ASIC documents, payslips, contract of employment, statement of genuine need and publicly available information about the applicant (including its website) the Tribunal is satisfied that the proposed tasks of the nominee will be performed in Australia.
The Tribunal notes that the ANZSCO dictionary describes the tasks of a Registered Nurse (Perioperative) include the following:
·assessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practice and standards;
·working in consultation with other Health Professionals and members of health teams, and coordinating the care of patients;
·providing interventions, treatments and therapies such as medications, and monitoring responses to treatment and care plan;
·promoting health and assisting in preventing ill health by participating in health education and other health promotion activities;
·answering questions and providing information to patients and families about treatment and care; and
·supervising and coordinating the work of Enrolled Nurses and other health care workers.
The Tribunal has considered the statement of genuine need, the employment contract and job description provided. Based on this evidence, the Tribunal is satisfied that the tasks to be performed by the nominee correspond to an occupation specified in the relevant instrument (IMMI 19/049).
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.
Amanda Mendes Da Costa
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
(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.
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.

[2023] AATA 2883

1 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction