Elegant Beauty & Brows Pty Ltd (Migration)

Elegant Beauty & Brows Pty Ltd (Migration) [2023] AATA 3937 (18 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Elegant Beauty & Brows Pty Ltd

REPRESENTATIVE:  Mr Troy Matthew Sanders (MARN: 0319666)
CASE NUMBER:  1924439
HOME AFFAIRS REFERENCE(S):          BCC2018/493278
MEMBER:Ian Berry
DATE:18 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 18 September 2023 at 8:36am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Beauty and Salon Manager – position cannot be filled locally – obligation on the applicant – employing an existing or ‘earmarked’ candidate – genuine and transparent process – salary not specified in advertisement – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
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 (the Minister) on 13 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 30 January 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the applicant has not demonstrated the tasks to be performed in the position correspond to the tasks of the occupation of beauty and salon manager.
The applicant’s director Mr Powvalla (the director) appeared before the Tribunal on 13 April 2023 to give evidence and present arguments. The hearing was conducted through MS Teams.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
In this case the Tribunal identified the issue of whether the applicant had complied with reg 5.19(4)(h)(ii)(C): the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place.
Facts
The applicant’s business was established on 27 July 2017, employing five employees, one of whom was an Australian and the other four employees were visa holders. The applicant owns many beauty salons in New South Wales and Queensland numbering nine salons of which the majority, but not all, are under the control of a beauty manager. There are some which do not have managers but rely upon a supervisor and if there is no supervisor then a senior beautician. The beauty salon manager attracted a salary of $55,000 plus SGC.[1]
[1] Superannuation Guarantee Contribution
The applicant placed newspaper advertisements in the Tweed Daily News on 16 September 2017 and 23 September 2017. The advertisements advertised for candidates to fill the position of beauty salon manager describing the position as full-time ‘busy and fast paced’. Qualifications were that the approved candidate ‘must have a relevant diploma qualification or at least three years relevant work experience’. The advertisement also stated, ‘we specialise in threading, eyelash extensions and perming, henna, tinting, Indian head massage’. The advertisement did not provide details of the salary or the salary range.
An internet advertisement was placed for the position of beauty salon manager at Tweed Heads. There was insufficient information to identify the website as it was called Jobsearch by the applicant. Identifiers were not on the advertisement. The spreadsheet identified the advertisement period from 14 September 2017 to 5 October 2017, a period of 21 days. This advertisement included the job title, address, full-time position and that it is a permanent position. The advertisement did not include the salary or the salary range. The period over which it was advertised is not known. Also included were the salon’s specialties (underlined below). The description of the position was as follows:
Description
We require a dedicated, full-time Beauty Salon Manager for our busy store. Responsibilities This role is responsible for the overall management of the beauty salon. The salon provides the following services: threading eyelash extensions henna tinting eye lash perming facials waxing Indian head massage duties will include: managing client appointments by managing arrival and departure of clients managing customer service managing employees – hiring and firing, training managing overall store day-to-day operations providing energetic and positive client focused services taking bookings over the phone, via email and in person promote products and upsell services by advertising clients on their beauty options liaise between salon owners and team, as well as clients and team be responsible for nominated administration tasks and documentation setting prices for services and maintaining financial records determining products to be ordered, maintain stock levels within budget keeping budgeting and reporting of performance v budget to owners ensure salon meets OH&S experience and skills required: proactive attitude well presented work well under pressure ability to stay on feet for long periods of time relevant Diploma qualifications are essential or at least three years of relevant experience recent work experience is essential experience with threading an advantage
How to apply
Apply online
Number of positions
1
Expiry (dd/mm/yyyy)
05/10/2017
Normal position
Hours
38
Salary
Not Specified
Your reference
Indigenous Identified Position
False
Representative
Eric Powvalla
Phone Number
**********
Contact Email
Powvallae@****.***
The applicant provided the Minister with a spreadsheet summary of the information from candidates the applicant states applied for the position. This spreadsheet compiled by the applicant or its migration agent, stated the candidates who applied numbered 10 in all, with only one responding to the newspaper advertisements, otherwise through the only recruitment website advertisement.
The applicant’s spreadsheet did not disclose the names of the candidates but identified them by numbers. The candidates’ response dates and postcodes were disclosed. This spreadsheet also disclosed the reasons why the candidates were either suitable or unsuitable.
Candidates who have been found unsuitable have the following note: ‘does not possess the required skills through qualification or work experience’.
On 30 January 2018, the applicant applied for the nomination of the position of beauty salon manager, to be employed in its Tweed Heads salon located in the Tweed City Shopping Centre at Tweed Heads, a regional area located in New South Wales. The applicant identified Ms Dahal (the nominee) who also applied for her 187 visa on the same day.
In his evidence at the hearing, the director confirmed that he did not interview any of the candidates. The applicant confirmed that it did not retain the curriculum vitae or resumes as they had not been kept, for candidates’ privacy reasons.
The nominee’s visa application shows the nominee having been employed by the applicant from July 2017 to the present time. On 19 October 2017, an employment agreement between the applicant and nominee was signed.
Other evidence produced by the applicant as to advertising for the position is an email from TURSA, an employment and training agency which has a presence in Northern New South Wales. TURSA may have had an association with the shopping centre where the business was located. An email to the applicant’s past migration agent Mr Trent Pickup dated 5 October 2017 states ‘this position has been on our Job List for over 3 weeks however, there have been no referrals for this role. I will remove this from our list.’ A report of the evidence of the actions of TURSA has not been given to the Minister or the Tribunal.
The position of the beauty salon manager, within the organisational chart of the applicant’s Tweed Heads salon, on 16 November 2017, has the following members of management and staff:
·Mr Eric Powvalla describes himself as the owner. His skills or strengths are that he is a successful business owner with experience in beauty salons.
·Ms J Kaur is a hair and beauty stylist (eyebrows) with relevant qualifications in beauty.
·Ms D K Kalhar is a specialist hair and beauty stylist (Henna) with relevant experience.
The organisational chart was in the applicant’s business plan. Another table provided information of the staff required to be employed. The proposed employees are a beauty therapist and a hair and beauty salon manager. However, as the organisational chart was within the business plan dated 16 November 2017, the applicant had already employed the nominee.
The applicant also presented Facebook placements to the Tribunal without comment.
Regional Development Australia – Northern Rivers
By letter dated 10 January 2018, Regional Development Australia – Northern Rivers New South Wales provided a Form 1404. The Tribunal was not given the information upon which the Form 1404 was based. The letter provided to the applicant’s past migration agent Mr Pickup, stated in the second paragraph:
We are satisfied that your client’s application meets the requirements of reg 5.19(4), in that there is a need for the paid employee; the nominated position cannot be filled by an Australian citizen and the terms and conditions of employment are adequate
The applicant’s case
Submission by the applicant dated 7 July 2023, provided an answer to the question of the need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area. The applicant responded with:
I confirm that since hiring the nominee, Rupa Dahal, I have not advertised for a manager for the Tweed Heads South salon, for the reason that Rupa is in the position. I confirm my advice in my submission dated 18 October 2022, that I have never had a suitably qualified or experienced Australian citizen or permanent resident apply as a result of any advertisement for a Salon Manager in any of my salons throughout Australia. I would hire locally if I could but we don’t attract suitable applicants.
I confirm that the problem is not restricted to salon managers – I cannot find experienced Beauty Therapists to work in our salons. For this reason we do the best we can with the staff we have. We find that Indian student visas holders are generally the only people who wish to work in our Salons. We don’t discriminate – we would hire anyone and would prefer Australian citizens and permanent residents, but it is very rare to find any who wish to work in the positions we have available.
I have attached evidence of recent advertisements placed by Rupa for Beauty Therapists, from which we have received no responses.
I confirm that I continued to have the genuine need to engage Rupa on a full-time ongoing basis as the Salon Manager in Elegant Beauty & Brows, Tweed Heads South.
Readvertising the position of beauty salon manager
The applicant through its now migration agent submitted the following:
a.Submission by Troy Migration made 25 July 2023;
b.Advertisement for the position of beauty salon manager on Workforce Australia on 21 July 2023;
c.Advertisement for the position of beauty salon manager placed on Indeed.com on 21 July 2023.
The applicant relied upon the certificate by Regional Development Australia – Northern Rivers by providing the Form 1404 as the Certifying Regional Body.
The Tribunal sought further information by s 359 of the Act, by inviting the applicant to provide information relevant to the nomination. The applicant decided to advertise.
The applicant provided a copy of the Indeed advertisement made 21 July 2023. On this occasion the applicant decided to enter the salary range of $60,000–$70,000 a year for the full-time position. The director advised the Tribunal in another case in which this Tribunal was constituted, that all salon managers are now paid $65,000 per annum plus SGC. The advertisement is:
Beauty Salon Manager Required
Elegant Beauty & Brows Pty Ltd
Tweed Heads South NSW 2486
$60,000 – $70,000 a year – full-time
Elegant Beauty & Brows Pty Ltd trading as Elegant Beauty & Brows is seeking a qualified and experienced Beauty Salon Manager to join our team at our Salon at Tweed City Shopping Centre.
Successful applicants will ensure tasks assigned are carried out in a timely fashion and to a high standard.
Tasks and responsibilities:
·Overseeing daily salon operations
·Hiring and training beauticians, as needed
·Organising staff rosters, considering peak times
·Order beauty products and replenish stock
·Arrange for regular maintenance services for all equipment
·Apply hygiene practices across all beauty stations
·Ensure all beauty treatments meet high quality standards
·Maintain staff records, including salaries and working schedules
·Promote services, products and discounts on social media
·Receive payments from clients and track all transactions
·Keep updated records of costs and revenues (e.g. daily, monthly and quarterly)
·Run online competitions and offer discount packages to attract new customers, as directed
·Other duties as reasonably required
Ideal candidates will have:
·A diploma in salon management or at least three years relevant work experience as a Beauty Salon Manager, or similar role
·Good knowledge of beauty treatment and products
·Basic bookkeeping knowledge
·Ability to handle customers requests and complaints with grace
·Good interpersonal and communication skills
·Good time management skills, positive and self-motivated; and
·Ability to work a flexible roster, including nights, weekends, school and public holiday periods.
The salary offered is based upon the award but will may be commensurate with qualifications and experience. This is a full-time position working 38 hours a week.
Salary range: $60,000.00 – $70,000.00
Job Type: full-time
Salary: 60,000.00 – 70,000.00 per year
Schedule:
· 8 hour shift
Work Location: In person
Application Deadline: 20/08/2023
A similar, if not identical advertisement, was placed with Seek on 21 July 2023. The applicant provided a tax invoice for this issued 20 July 2023 totalling $357.50.
Section 359 invitation for information
On 13 July 2023, the Tribunal invited the applicant to provide information which would satisfy reg 5.19(4)(h)(ii)(C) after providing a summary of the evidence provided by the applicant in fulfilling its commitment under that regulation. The Tribunal noted the applicant’s spreadsheet summarising the relevant information concerning the candidates who applied for the position.
The applicant through its director made the submission of 7 July 2023 in response to the Tribunal’s questions:
1.The need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area
I confirm that since hiring the nominee, Rupa Dahal, I have not advertised for a manager for the Tweed Heads South salon, for the reason that Rupa is in the position. I confirm my advice in my submission dated 10 October 2022, that I have never had a suitably qualified and experienced Australian citizen or permanent resident apply as a result of any advertisement for a Salon Manager in any of my salons throughout Australia. I would hire locally if I could but we don’t attract suitable applicants.
I confirm that the problem is not restricted to Salon Managers – I cannot find experienced Beauty Therapists to work in our salons. For this reason we do the best we can with the staff we have. We find that Indian student visas holders are generally the only people who wish to work in our Salons. We don’t discriminate – we would hire anyone and would prefer Australian citizens and permanent residents, but it is very rare to find any who wish to work in the positions we have available.
I have attached evidence of recent advertisements placed by Rupa for Beauty Therapists, from which we have received no responses.
I confirm that I continued to have the genuine need to engage Rupa on a full-time ongoing basis as the salon manager in Elegant Beauty & Brows, Tweed Heads South.
2. For each and every candidate applying for the position of Hair or Beauty Salon Manager ANZSCO occupation code 142114, the following information in writing:
(a) the full content of all candidates CV or resume provided to the applicant, including a candidate who submitted a CV or resume either before or after the advertisement and whose name is not on the list provided by the applicant. Residents, current occupation, qualifications and experience;
I confirm that I do not retain copies of CVs or resumes for applicants who applied for the position, as the advertising took place in 2017. The table that I provided to the Tribunal with my submission of 18 October 2022 contains an accurate reflection of the qualifications and experience of each applicant received, and lists reasons why each applicant was not suitable. Note that Rupa was applicant 4, and was our only applicant with skills and experience even remotely relevant to the role. I note that the table confirms postcode residence, qualifications, experience and why they were not considered suitable.
There were no further applications received either before or after the advertisement, and if there were any suitable applicants I would have at least spoken to them, with a view to employing them.
(b) the reason for the candidates unsuitability including the applicants Notes concerning the reasons for the unsuitability.
The only records that I retain is evidence of the advertising relied upon is the information contained in the table referred to above, which lists my notes confirming reasons for the unsuitability.
(c) whether each and every candidate was interviewed, emailed or telephoned concerning further information sought by the applicant.
I confirm that I did not interview, email or telephoned each and every candidate, as they were clearly not suitable for the position. I refer the Tribunal to the table confirming details of each applicant, and submit that it is reasonable to not contact applicants who have no relevant qualifications or experience.
(d) whether a Specified Regional Certifying Body located in the same State or Territory as nominated position has provided advice that:
(i) the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and
(ii) there is a genuine need to employ the nominated person is paid employee to work in the nominated position under the applicant’s direct control; and
(iii) the position cannot be filled by an Australian citizen or permanent resident living in the same area.
(iv) local job advertisements for the nominated position.
(v) information provided to or received by the RCB.
I attach evidence as submitted with my letter of 18 October 2022 confirming that the Regional Development Australia, Northern Rivers, the specifying Regional Certifying Body for Tweed Heads South, provided positive advice in relation to the above points on 10 January 2018.
3. The question and response is irrelevant to the issue under review.
4. The question and response is irrelevant to the issue under review.
5. Information about the advertisement not including the proposed salary of the successful applicant.
The advertising was genuinely conducted, and was conducted in line with the requirements of Regional Development Australia, Northern Rivers who did not at the time impose a requirement to include a proposed salary. From my experience advertising unsuccessfully for Salon Managers on numerous occasions, I don’t think I would have found a suitable applicant even with a salary specified.
I confirm that over the 10 years that we have operated the business, that I have always struggled to fill skilled Salon Manager positions. I currently have 2 vacancies for Gold Coast based stores which I am unable to fill.
6. Information from the advertiser as to the total number of candidates. Internet recruitment sites include reports on a number of reviews and candidates who have applied.
I confirm that given the advertising took place in 2017, we have been unable to obtain information from Jobsearch in relation to the number of reviews all candidates who applied. I again confirm that the summary table provided is an accurate reflection of the qualifications and experience of the applicants who applied.
I confirm my previous submission is that our application meets the requirements for approval, and would appreciate the assistance of the Tribunal in finding our favour. I do not believe we could replace Rupa from the local labour market, on which basis if we were unable to retain Rupa in the position we may be forced to close the Tweed Heads South Salon.
…
Yours faithfully
Eric Powvalla
Owner/Director

In response to the Tribunal’s invitation to provide information, the applicant through its migration representative confirmed the applicant did not have any further information to supply relevant to reg 5.19(4)(h)(ii)(C). The representative responds:
Noting that the regulation 5.19(4)(h)(ii)(C) requirement that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place is a time of decision requirement, and because from your invitation for information the inference is that you cannot make a decision favourable to the business, Eric has decided to readvertise in the format required by the Department of Home Affairs (DHA) in relation to new applications for subclass 482 and 494 visas.
Attached to the representative’s letter is a copy of the advertisement placed on Workforce Australia on 21 July 2023, and the advertisement placed on Indeed.com on 21 July 2023. The advertisement has been placed to run for 28 days and ‘undertakes to provide the Tribunal honest and accurate results of the responses received. Therefore, the applicant requires an extension of time until 18 August 2023 with an additional five days to collate responses and prepare submissions for the Tribunal’s review in accordance with Eric’s instructions’.
Sequential analysis, law and conclusion
The applicant established its beauty salon business on 27 July 2017. The applicant has employed the nominee since July 2017.[2] Her employment was as a beautician. The applicant decided to advertise the position of a beauty salon manager.
[2] According to the nominee's Form 80 submitted with her visa application 1926539.
The applicant advertised on a website for 21 days from 14 September 2017 to 5 October 2017. A spreadsheet summary of candidates is compiled. Nobody was interviewed, the nominee is the successful candidate.
Regulation 5.19(4)(h)(ii)(C) does not provide guidance as to the steps an applicant must or should undertake to satisfy that no Australians are located in or near the applicant’s business. Given its literal meaning, requires the
In a statement that has come to be quoted as the present basis for interpreting legislation, the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) ALR 405; 91 ALJR 936 at [14] said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction.
Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
The words ‘cannot be filled by an Australian citizen or an Australian permanent resident’ places on an applicant the obligation to undertake a course of action to investigate whether an Australian could fill the position. The applicant must be genuine in satisfying this criterion. Even more so if the applicant has employed a current employee, as is the case here. The Tribunal considers that an extra element is required when employing an existing or ‘earmarked’ candidate by ensuring the process is transparent.
There is no narrative in the legislation as to the means of carrying out the exercise of finding an Australian. Internet advertising is not specified but is the most used mode of recruiting. Other modes include newspaper advertising, engaging a recruitment agency, attending employment symposiums, attaching recruitment signage in strategic places including advertising (if allowed) within the shopping centre and on Facebook and other communication media.
As to transparency, the inability to show a Tribunal the resumes or curriculum vitae of candidates may be appropriate in some circumstances, particularly for example, if a salon manager or beautician of a competitor is applying for the position. However, to simply state that the applicant is protecting the privacy of candidates is not a valid argument when transparency is required. Transparency allows the Tribunal to better gauge the genuineness of the applicant’s attempts to recruit an Australian. Paying for internet advertisements would provide greater transparency by enabling the production of a report of the candidates who applied to corroborate the details in the spreadsheet.
In this case, the applicant does not advertise for a salon manager when setting up the business in Tweed Heads.
The applicant makes its nomination application in January 2018 identifying the nominee after advertising in a newspaper and placing a free internet advertisement running for 21 days, ending on 5 October 2017.
The applicant employs the nominee as the salon manager though she has been employed with the applicant since mid-2017.
The applicant does not show a genuine attempt to fill the position with an Australian, when its advertisements run for a relatively short period using no-cost to low-cost advertising. The length of time of the advertising campaign is about one month at most. The internet advertisement suggests the salon manager should, by implication, have experience with Indian beauty treatments. But, the salon manager role is managerial and not technical and should not require any technical experience.
The advertisement is limited in appeal if the salary is not given. For example, an existing experienced salon manager or beautician working in the location, may consider the position as an increase in salary or an advancement in the candidate’s career. But, the applicant does not disclose the salary of the position. The director’s evidence is all managers are paid $55,000, with an increase in October 2022 for all managers to $65,000.
Whatever the means or mode used by the applicant, the legislation requires the process is genuine and transparent. It is for the applicant to show that it has made a genuine attempt to employ an Australian citizen or an Australian permanent resident. That may mean making several internet advertisements, a selection of newspaper advertisements or in some instances engaging a recruitment employment service, employing Facebook or Indeed communication media and running a campaign for more than 21 days.
The applicant starts from a position where it must be aware that its recruitment process will be scrutinised so as to ensure it is genuine in its attempt to recruit an Australian.
The applicant in this case, ultimately selects an employee then employed as a beautician for only a few months to undertake the position of beauty salon manager. Its first attempt to secure the filling of the position is a newspaper advertisement in the local Tweed Daily News. The applicant’s advertisement under the banner ‘Beauty Salon Manager’ is placed in the jobs section of the newspaper. The advertisement is brief in that there is no detail as to the remuneration offered, or the range of remuneration offered. It does not provide a description of the duties to be undertaken or the type of qualification that may be needed. What it does say is that the business specialises in threading, eyelash extensions and perming, henna, tinting and Indian head massage treatments. Prospective candidates may see that as a limiting factor if they have no experience in those treatments.
The applicant engaged TURSA, a recruitment agency, which according to the email from TURSA was recruiting on behalf of the applicant. It had advertised for three weeks without any success. No information was provided to the Minister or the Tribunal as to the steps taken to recruit.
The applicant decided to readvertise. The applicant’s nominee has now been in the position for at least four years. The Tribunal is not satisfied the applicant will select the better candidate if it finds one. Paragraph 31 makes it clear that the applicant employs the nominee and will not be readvertising. That is stating the obvious as the applicant to the time of readvertising has not been genuine in filling the position with an Australian. The Tribunal is not satisfied that the readvertising is genuine.
The Tribunal is not satisfied the applicant genuinely cannot fill the position of beauty salon manager through the means used by it as presented in the evidence put before it, and makes that finding.
Accordingly, the requirements of reg 5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Ian Berry
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;`
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2023] AATA 3937

18 September 2023

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Immigration

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