Dimattina Coffee WA PTY LTD (Migration)

[2022] AATA 254

Dimattina Coffee WA PTY LTD (Migration) [2022] AATA 254 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dimattina Coffee WA PTY LTD

REPRESENTATIVE:  Mr Gerrit Jansen Van Rensburg (MARN: 1175375)

CASE NUMBER:  1935611

HOME AFFAIRS REFERENCE(S):          BCC2019/6580956

MEMBER:Jane Bell

DATE:2 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2022 at 5:01pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – chef – additional documentary evidence provided to tribunal – comparison of nominee’s tasks and responsibilities and ANZSCO description – skills shortage in sector – decision made with no hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulation 1994 (Cth), r 5.19(4), (9)(c), (d)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 December 2019 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).

2. The applicant applied for approval on 10 December 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 3 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(9)(d) of the Regulations because the evidence failed to demonstrate that the applicant had a genuine need for the identified person to be employed in the position under the direct control of the nominator.

5. 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 Migration Act 1958 (Cth) (the Act).   

6. The applicant was represented in relation to the review.

7. 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

8. 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)

9. 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 Act.

10. 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.

11. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019. The Tribunal finds that reg 5.19(2)(aa) does not apply in this case because the nominee applied for a Subclass 186 visa.

12. On the basis of information in the Department’s file, the Tribunal is satisfied that the application:

    ·was made in accordance with the approved form 1395 (Internet);

    ·identified the position of Chef (ANZSCO 351311);

    ·identified Mr Jean Didier Olivier Arsene (the nominee) as the person in relation to the position;

    ·identified the occupation of Chef in relation to the position;

    ·identified the Subclass 186 and Direct Entry stream to which the nomination relates;

    ·was accompanied by the fee mentioned in reg 5.37;

    ·included a written certification by the nominator stating that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act;

    ·    was made on 10 December 2019 which falls after 12 August 2018 which is relevant for the training requirements; and

    ·    was accompanied by the nomination training contribution charge and identified the ‘annual turnover’ of the business.

13. 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)

14. 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.

    Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

15. The Tribunal has reviewed the Department’s records and has not found anything to indicate that there is any adverse information known to the Department about the nominator or a person “associated” with the nominator.

16. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licensing, registration and memberships – reg 5.19(4)(c)

17. 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.

18. In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Chef and the date of application is 10 December 2019.

19. The Tribunal has reviewed the Department’s file and is satisfied that there are no licensing, registration or membership requirements required of the identified person, (the nominee), at the time of application.

20. 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)

21. 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.

22. The Tribunal has information from the Fair Work Ombudsman stating that there are no current records of investigations that had resulted in the application of an enforcement tool against the nominator.

23. There is nothing in the Department’s records to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

24. The Tribunal is satisfied that the applicant 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.

25. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Training contribution debts – reg 5.19(4)(da)

26. 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.

27. The Tribunal has reviewed the Department’s file and is satisfied that there has never been 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.

28. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

    Actively and lawfully operating a business – reg 5.19(9)(a)

29. Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.

30. The business is located at 3/19 Collingwood Street, Osborne Park, Western Australia, 6017  and is a café with a capacity to seat at least 60 people.

31. The Tribunal has current information as evidence that the nominator is actively and lawfully operating a business in Australia including:

    a.ABN lookup dated 10 December 2021;

    b.ABN historical details dated 10 December 2021;

    c.ASIC search dated 10 December 2021;

    d.Organisational chart dated 19 November 2021 listing the nominee as Head Chef and which shows there are 24 total employees being 22 Australian citizens/permanent residents and 2 foreign employees (including the nominee);

    e.Balance sheet for the financial year ending 2020;

    f.Profit & Loss Statement for the financial year ending 2020;

    g.Dimattina Coffee Group financial statements and tax returns for the financial years ending 2019 and 2020 prepared by a Chartered Accountant; and

    h.ATO Business Activity Statements for October 2019 to September 2021.

32. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.

33. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.

    Labour hire businesses – reg 5.19(9)(b)

34. 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.

35. The nominator’s business is running a cafe and its activities do not involve labour hire activities.

36. 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)

37. 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.

38. The Tribunal notes that the Department refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(d) of the Regulations because the evidence failed to demonstrate that the applicant had a genuine need for the identified person to be employed in the position under the direct control of the nominator.

39. The Tribunal has considered evidence contained in the Department’s file together with recent additional documentary evidence provided by the nominator to the Tribunal regarding its genuine need for employment of a Chef. 

40. To address the requirement that there is a genuine ongoing need for the paid position, under the nominator’s direct control, the applicant provided documentary evidence to the Tribunal about the business and the growth of the business including financial statements. The evidence also included a letter from a director of the business, Simon Dimattina, dated 30 April 2021, stating that there is an ongoing genuine need to employ the nominee due to the fact that the café is very busy, seats over 60 people, serves food and drink and is open Monday to Saturday.   The nominee manages the entire kitchen, a sous chef and other café staff.  He is responsible for the menu design, all food preparation, rostering, costings and to maintain a profitable café.   The letter states that the nominee has the appropriate qualifications, experience, cooking skills, managerial skills and thorough hospitality knowledge.

41. The organisation structure, as seen in the Organisational Chart dated 19 November 2021, confirms that the position continues to fit into the business activity and that the nominee is working under the direct control of the nominator.

42. The Employment Agreement dated 11 November 2021 to work in the nominated position as a paid employee, , which is signed by a director of the company, indicates that the position is ongoing and that there is a genuine need for the position.

43. The Tribunal accepts that there is a general shortage of Chefs with the nominee’s skills and experience and that the nominee would be very hard to replace and consequently the business would suffer.

44. Based on the evidence including the Employment Agreement dated 11 November 2021 between the nominator and the nominee stating that the applicant is to work in the nominated position as a paid employee, the nominee’s Position Description, Organisational Chart and the fact that the nominee has been employed in the nominated position since August 2019, the Tribunal is satisfied that the applicant has a genuine need for the paid position, and that he is working under the applicant’s direct control.

45. Furthermore, the Tribunal finds that the application identified a need for the nominee to be employed by the applicant as a Chef.  

46. 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)

47. Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.

48. 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.

49. 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.

50. 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.

51. The nominee has been employed full-time as a Chef since August 2019 as evidenced by his payslips dated August 2019, December 2019, 29 July 2020 and 12 May 2021, which confirms that the nominee has been working in the position for more than 2 years, has worked continuously in the same role and still works in the business.

52. The Tribunal has before copies of the nominee’s 3 Employment Agreement’s dated 5 December 2019, 30 April 2021 and 11 November 2021.  The most recent employment contract dated 11 November 2021 states that the nominator will provide permanent full-time employment for the nominee in the position of full-time Chef on a salary of $66,795 per annum, including 9.5% superannuation for a duration of 2 years from the signing of the agreement.

53. The nominee’s Employment Agreement dated 11 November 2021 provides for a salary of $66,795  per annum plus 9.5% superannuation.  The Tribunal has information before it, including recent salary surveys and online research for the position.   As at 25 January 2022, PayScale stated that an average Head Chef salary in Australia is $65,718 per annum. Indeed states that the average salary of a Head Chef in Western Australia is $79,917 per annum.  Talent states the average salary for a Head Chef in Australia is $75,000 per annum with the range being between $56,186 and $82,500 per annum depending on experience.  The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates and within the range of a Chef’s annual market salary rate in the same location.    

54. The Tribunal has considered the following documentary evidence regarding the nominators financial capacity to employ the nominee for at least 2 years:

    ·The nominee’s Employment Agreement dated 11 November 2021;

    ·The nominator’s financial statements for the years ending 2019 and 2020;

    ·The nominator’s ATO Business Activity Statements for October 2019 to September 2021;

    ·The nominee’s payslips for 2019 to 2021;

    ·Letter from Kennedy King Chartered Accountants dated 9 January 2020 confirming the nominator’s capacity to employ staff, and referring to the nominator’s financial statements, ATO Business Activity Statements and confirming that the business is in good standing.

55. After reviewing the above documents particularly recent 2019 and 2020 Profit and Loss Statements and Balance Sheets, the Tribunal is satisfied that the applicant has increased its revenue each year in recent years with the latest total revenue for 2020 being $6,376,626, net profit being $320,059 after all expenses have been paid including wages, superannuation and WorkCover and total equity in the business being $373,281. The Tribunal is further satisfied that the nominator’s wage payments clearly exceeded the nominee’s salary for the last 2 financial years as evidenced by the 2019 and 2020 financial statements and the ATO Business Activity Statements provided.

56. Given the above, the Tribunal is satisfied that the nominator is running a viable business and has the financial capacity to employ the nominee for at least 2 years and pay his salary of $66,795 per annum inclusive of superannuation.

57. Furthermore, based on a review of the latest Employment Agreement, the Tribunal finds that the terms and conditions of the nominee’s employment do not and will not exclude the possibility of extending the period of employment.

58. 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)

59. 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 relevant instrument. 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: 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 18/033, 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).

1. IMMI 18/033, Part 2 – Income Threshold and Annual Earnings, section 6 Income Threshold, states that for the purposes of paragraph 2.72(15)(d) of the Regulations, the temporary skilled migration scheme income threshold (TSMIT) is $53,900.

2. The latest Employment Agreement together with payslips and recent ATO Business Activity Statements establishe that the salary for the nominee is $61,000 per annum plus 9.5% superannuation which equates to $66,795.  This salary is within the range of and in accordance with the annual market salary rate for this position. The Tribunal accepts that the nominee is the only permanent full-time employee in the nominated position and there is no equivalent Australian worker. The nominee’s nominated salary of $61,000 per annum plus 9.5% superannuation is therefore no less favourable than those that would be performing the equivalent work.

3. Regulation 2.72(15) does not apply if the annual earnings will be at least the amount specified by legislative instrument for reg 2.72(15)(b).

4. The Tribunal notes that the proposed salary is no less than the temporary skilled migration income threshold specified by the Minister which is currently $53,900. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.

5. The Tribunal has information before it, including recent salary surveys and online research for the position.   As mentioned previously, as at 25 January 2022, PayScale stated that an average Head Chef salary in Australia is $65,718 per annum. Indeed states that the average salary of a Head Chef in Western Australia is $79,917 per annum.  Talent states the average salary for a Head Chef in Australia is $75,000 per annum with the range being between $56,186 and $82,500 per annum.  The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates and within the range of a Chef’s annual market salary rate in the same location.   

6. 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)

7. 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 than 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.

8. The latest Employment Agreement provides for a salary of $61,000 plus 9.5% superannuation, being $66,795 in total. The Tribunal is satisfied that the Employment Agreement has standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Cth) and National Employment Standards.  The Tribunal finds there is no information that indicates the nominee’s employment conditions will be less favourable than those for the Australian equivalent.

9. 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)

10. 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, therefore reg 5.19(10) is relevant but not reg 5.19(12).

11. 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 relevant instrument.

12. Further, for nominations made before 12 August 2018, reg 5.19(10)(c) requires that certain specified training requirements are met. However, these requirements do not apply in this case, as the nomination application was made after 12 August 2018.

13. The nominated position duties, as listed in the position description for the nominee provided to the Tribunal, are as follows:

    • planning menus, estimating food and labour costs, and ordering food supplies
    • monitoring quality of dishes at all stages of preparation and presentation
    • discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
    • demonstrating techniques and advising on cooking procedures
    • preparing and cooking food
    • explaining and enforcing hygiene regulations
    • may select and train staff
    • may freeze and preserve foods

14. The ANZSCO unit group description for Chefs (ANZSCO 351311) is listed as follows:

    i.   planning menus, estimating food and labour costs, and ordering food supplies

    ii.   monitoring quality of dishes at all stages of preparation and presentation

    iii.   discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    iv.   demonstrating techniques and advising on cooking procedures

    v.   preparing and cooking food

    vi.   explaining and enforcing hygiene regulations

    vii.may select and train staff

    viii.may freeze and preserve foods

15. Based on the evidence including the position description provided by the nominator to the Tribunal, the Tribunal is satisfied that the tasks to be performed in the nominated position correspond to the tasks of the occupation specified in the ANZSCO occupation of Chef (ANZSCO 351311), that the tasks will be performed in Western Australia, that there are no additional requirements for that occupation and that the occupation applies to the nominee.

16. Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) and reg 5.19(4)(f) are met.

17. 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

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

    Jane Bell
    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.