EM Moderity Care Pty Ltd (Migration)

[2021] AATA 1385

EM Moderity Care Pty Ltd (Migration) [2021] AATA 1385 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EM Moderity Care Pty Ltd

CASE NUMBER:  1824574

HOME AFFAIRS REFERENCE(S):          BCC2017/4783080

MEMBER:Phoebe Dunn

DATE:7 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 07 May 2021 at 9:32am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – need for position and position cannot be filled by citizen or permanent resident – advice from regional certifying body – tasks of position – applicant’s qualifications, skills,  attributes, performance in position and value to employer – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(C), (F)

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 7 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 14 December 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(F) of the Regulations because the applicant failed to provide evidence that the Regional Certifying Body (RCB) had provided the advice to the Minister as to the matters referenced in r.5.19(4)(e), or r.5.19(4)(h)(ii)(B) and (C).

5. The applicant, represented by Mr Vincent Cai, appeared before the Tribunal by video‑conference on 20 April 2021 to give evidence and present arguments. The hearing was conducted as a joint hearing with the review of the application to refuse the Subclass 187 visa application of the related nominee, Ms Simranjit Kaur, and the Tribunal also received oral evidence from Ms Kaur. The hearing was conducted with the assistance of interpreters in the Mandarin and Punjabi languages.

6. The hearing was held during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video-conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant consented to the hearing being conducted by video. While there were some technical difficulties prior to the commencement of the hearing, the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review by its registered migration agent, Mr Dildeep Singh, who attended the hearing by telephone.

8. 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

9. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

10. The applicant runs a special needs residential facility for patients with disabilities such as intellectual disabilities, schizophrenia, depression, autism and the like. At the hearing, Mr Cai gave detailed oral evidence about the nature of the business, the history of this matter and the nominee’s role. Mr Cai stated that he first met the applicant when he placed advertisements for various roles working in the business. He stated that he was impressed with her background and experience as a nurse and noted that she had management qualifications as well. He stated that she commenced working part-time while she was studying, then became full-time taking on a supervisory position and the role of Facilities Manager.

11. Mr Cai gave detailed oral evidence about the difficulty of finding and retaining skilled employees in a regional location, noting that he was constantly advertising to fill positions that were still vacant, such as the role of Registered Nurse, which his wife is currently performing, and another Personal Care Assistant position, which he is currently undertaking part‑time. He stated that he might get a few applications, but none had the appropriate qualifications and experience for the roles. He stated that this had been exacerbated by the COVID‑19 pandemic and the availability of JobKeeper and JobSeeker.

12. Mr Cai stated that the nominee had been undertaking the role for over three years and was doing a very good job. He stated that she was an invaluable employee and he was heavily reliant on her. He stated that he operates another facility and needs to spend time on both businesses, and it was important to him to ensure he provided job security to the nominee. He stated that he understood the role of Facilities Manager as he had undertaken this position for his former employer before he decided to buy a business himself. He stated that he couldn’t survive without her and that she was well liked by other staff and the residents at the facility.

13. Ms Kaur gave evidence about her background, role and duties consistent with the evidence of Mr Cai. She stated that she was initially part-time while she was studying and on a bridging visa, but when the COVID-19 pandemic hit, the terms of her visa had changed allowing her to work full-time and that she had been full-time since March 2020. She stated that she worked five days a week from Wednesday to Sunday and would receive overtime if she worked longer hours. Ms Kaur stated that she was a hard-working, loyal employee and enjoyed working for the business and had an attachment to the residents at the facility. She stated that she was hoping that there would be a positive outcome to assist her to continue working for the applicant.

14. At the hearing, the representative noted that Ms Kaur had been granted a Subclass 491 visa for five years. He stated that notwithstanding this, the applicant was keen to pursue the Subclass 187 visa nomination to provide important job security for the nominee and provide him with certainty that the nominee would continue to work for him for at least two years. He stated that the business has a genuine need for the nominated position and that is why they continued to pursue a successful outcome for the nomination application, noting that it was not for the purposes of securing a visa for the nominee.

    The application is compliant: r.5.19(4)(a)

15. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

16. The Tribunal has reviewed the documentation before it and is satisfied that the application was made on the approved form and was accompanied by the relevant s.245AR(1) certification and application fee. The application identifies the nominee, Ms Simranjit Kaur, in the nominated position of Facilities Manager (ANZSCO 149913).

17. The Tribunal has also considered written and oral evidence about the need to employ the nominee in the nominated position. The Tribunal has carefully considered the evidence before it and is satisfied the nomination application has identified a need for the nominator to employ the nominee in the nominated position of Facilities Manager under the applicant’s direct control.

18. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

19. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

20. The applicant has provided the Tribunal with extensive documentation demonstrating that the applicant is actively, lawfully and directly operating a business in Australia. This includes an ASIC and ABN extracts, recent Trust tax returns and financial statements for FY2018 and FY2019 and business activity statements (BAS) from July 2019 to 30 September 2020. The applicant has also provided a copy of its Supported Residential Services Registration Certificate Number 390/201703/2 dated 10 March 2017 and a copy of its current WorkCover Certificate of Currency.

21. Having regard to this documentation, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

22. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

23. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.

24. There is no evidence before the Tribunal to suggest the applicant is involved in labour‑hire activities. There is no evidence before the Tribunal to suggest that the nominee will be on‑hired to any unrelated business.

25. The most recent contract of employment for the nominee is dated 7 December 2017 and provides for the employment of the nominee in the nominated position of Facilities Manager at the location of the business at 96 Main Road, Lancefield, Victoria 3435. Evidence before the Tribunal shows that the applicant has been employed with the business full‑time since 20 March 2017. The applicant has provided a letter dated 27 February 2021 confirming continuing employment for at least two years following the date of the grant of a Subclass 187 visa and that the nominee has worked in the nominated position since 20 March 2017.

26. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

27. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

28. In considering this requirement, the Tribunal has had regard to documentation before it relating to the employment of the nominee. This includes the most recent employment contract, which provides for employment for a minimum of two years with no express exclusion of the possibility of extension, market salary information, written and oral submissions from Mr Cai and the most recent financial information provided by the applicant.

29. The most recent employment contract and position description signed by the applicant and the nominee and dated 10 December 2017 provides for full-time employment as a Facilities Manager at an annual salary for $60,000 plus superannuation for a minimum of two years from the date of the grant of the Subclass 187 visa, with no express exclusion of employment beyond that period. The applicant has provided a letter of confirmation dated 27 February 2021 that the position is still available to the nominee and the terms and conditions of employment still apply. The nominee has been working in the nominated position since early 2017. Based on material submitted to the Tribunal and oral evidence at the hearing, the Tribunal is satisfied that the nominee has been employed by the applicant in the nominated position since January 2017 and is still employed in the nominated position.

30. At the hearing, the Tribunal explored the profitability of the business, noting the impact of the COVID‑19 pandemic. In response, Mr Cai noted that the business had not been impacted financially by the pandemic and had not been impacted reputationally either as they had no reported cases of CVOID-19 within their facility. Mr Cai noted that they did a lot of work putting in place appropriate protocols and systems to ensure that their residents were protected, with the assistance of the Department of Health. Mr Cai noted that the financial health of the business was sound and that the business was capable of employing the nominee full-time in the nominated position for at least two years. Mr Cai stated that he now owns and operates another facility as well, which is also profitable.

31. Based on the contract of employment and letter of confirmation from the applicant, financial information for FY2018 to FY2020 and oral evidence at the hearing, the Tribunal is satisfied that the nominee will be employed in the position of Facilities Manager on a full‑time basis for at least two years on terms that do not expressly exclude the possibility of an extension.

32. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

33. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

34. The most recent contract of employment for the nominee provides for a full-time salary of $60,000 plus superannuation at the legislated rate. The terms and conditions of employment are in accordance with the Fair Work Act 2009.

35. There are no other staff members working for the applicant in the nominated position at the same location. In oral evidence at the hearing, Mr Cai stated he had another Facilities Manager who is running the new facility, who is an Australian citizen and is paid less than the nominee ($50,000). Mr Cai stated that the other facility has less residents and less staff, so the role is easier than the nominated position. He stated that the person undertaking that role was working for the business when he took it over in February 2021. The Tribunal accepts the applicant’s submissions.

36. The applicant provided evidence of market salary review undertaken in December 2017, prior to lodging the nomination application. This shows that the range for similar roles at the time was between $55,000 to $65,000. Recent market salary research undertaken by the Tribunal shows that the nominee’s salary is within the expected market rate.

37. Based on the evidence, the Tribunal finds that the remuneration and terms and conditions of employment are no less favourable than that which would be provided to an Australian citizen or permanent resident with the same or similar skills and experience as the nominee, performing equivalent work at the same workplace at the same location.

38. Accordingly, the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

39. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B of the Regulations.

40. There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the nominator or a person ‘associated with the nominator’.

41. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

42. Regulation 5.19(4)(g) requires that the applicant 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.

43. There is no evidence before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws.

44. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)

45. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

46. In this case, r.5.19(4)(h)(ii) is the relevant provision. The applicant’s business is located in Lancefield, Victoria, which is classified as regional Australia for the purposes of this provision in Schedule B of IMMI 17/059. Accordingly, the Tribunal finds that rr.5.19(4)(h)(ii)(A) and (E) are met.

47. At the time of application, the applicant provided a ‘genuine need’ statement with its application, noting that the business is in a regional town in Victoria and is growing. The applicant states that they are in need of a skilled, full-time Facilities Manager who can ‘plan, supervise and control their business operations’, and that there are no other suitable Australian citizens or permanent residents working for the business who could undertake the role.

48. In written submissions and oral evidence at the hearing, Mr Cai stated that he is not available to undertake this role full-time due to his other ‘multiple business endeavours’ and family commitments. He stated that they have other employees who are working for the business and undertake some minor management tasks but a dedicated full-time manager is required to support business operations and business growth. He stated that both he and his wife still work in the business when required to support the business until they are able to recruit suitably qualified candidates, which has proven difficult to do in a regional area (his wife as a Registered Nurse and himself as a carer).

49. Based on the evidence before it, the Tribunal is satisfied that there is a genuine need for the nominator to employ the person identified in r.5.19(4)(a)(ii), being the nominee, as a paid employee to work in the position of Facilities Manager under the nominator’s direct control. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(B) is met.

50. Regulation 5.19(4)(h)(ii)(C) requires the applicant to establish that the position cannot be filled by an Australian citizen or permanent resident residing in the same area. The applicant has provided evidence of its recruitment efforts made prior to lodging the nomination application. This includes copies of advertisements posted on Seek.com in December 2017 and evidence of expenditure on advertising on CareerOne. The applicant has stated that the nominee was employed following a selection process on the basis of her qualifications and evidence of prior experience as a nurse and facilities manager. Mr Cai stated that the nominee began working part-time in early 2017 as a Facilities Manager and the nomination application was lodged on 14 December 2017. At the hearing, Mr Cai and Ms Kaur advised that when Ms Kaur commenced working for the business, she was studying and could only work part‑time under the terms of her visa. Ms Kaur stated that from March 2020, she was permitted to work full-time and has done so since then.

1. At the hearing, Mr Cai noted that it was difficult to secure and retain suitably qualified employees in the business, particularly in regional Victoria. He stated that when he took over the business, some of the original staff resigned and he had to swiftly find new staff. He stated that he advertised the role and Ms Kaur applied for it, noting that she had the qualifications and experience and was happy to work in a regional area. Mr Cai noted that both he and his wife still worked in roles in the business when required, due to the difficulty in finding staff. Mr Cai noted the important role the nominee had played in responding to and implementing COVID-19 compliance arrangements specific to the business and that he relied on the nominee to run the facility so that he could focus on his other business interests. Mr Cai stated that the nominee was very good at staff management and that she also had the trust of the staff, and was well liked, which was important for the business. Mr Cai stated that the residents also like the nominee and that she treats them well and helps to look after their specific emotional, social and psychological needs. Mr Cai stated that he could not survive without her and in his experience he would find it very difficult to replace the nominee, and to do so would place considerable stress and pressure on the business and himself and would require a period of training and adjustment to get a new person up to speed. The Tribunal accepts this evidence.

2. The Tribunal notes that the RCB provided advice by email dated 24 September 2018 about the matters in r.5.19(4)(h)(ii)(C) noting that the position cannot be filled by an Australian citizen or permanent resident living in the same area as the nominated position. The Tribunal notes that the RCB advice is not determinative or conclusive to the Tribunal’s consideration of whether r.5.19(4)(h)(ii)(C) is met. Nonetheless, based on the evidence before it and noting the advice of the RCB, the Tribunal accepts that at the time of application, the position could not be filled by an Australian citizen or permanent resident who is living in the same local area. The Tribunal also accepts, based on the evidence before it, that the position cannot now be filled by a locally resident Australian citizen or permanent resident having regard to the specific skills, experience and attributes of the nominee and the specific requirements of the nominated position, her years of experience working in the nominated position, her knowledge of the business, her understanding of the COVID-19 requirements specific to the business and her relationship with health agencies and treating professionals and her relationship with the residents and other employees.

3. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(C) is met.

4. The Tribunal notes that the RCB provided advice by email dated 24 September 2018 about the matters in r.5.19(4)(e) and rr.5.19(4)(h)(ii)(B) and (C), noting that there is a need for a paid employee in the nominated position within the business activities of the nominating employer, that the position cannot be filled by an Australian citizen or permanent resident living in the same area as the nominated position and that the terms and conditions of employment will be no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. The Tribunal accepts the information in the advice. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(F) is met.

5. In written submissions and oral evidence at the hearing, the applicant has sought to establish that the nominee is undertaking the tasks of the nominated position. ANZSCO states a Facilities Manager organises, controls and coordinates the strategic and operational management of facilities in a public or private organisation, at Skill Level 2, requiring an AQF Associate Degree, Advanced Diploma or Diploma or at least three years of relevant experience.

6. The applicant has provided evidence of the nominee’s qualifications and experience in similar roles as evidence of meeting the skill level requirements, noting that the nominee has a Diploma of Nursing attained in Australia and a Certificate of General Nursing and Midwifery and a Diploma in General Nursing and Midwifery attained in India and a proven capacity both in the nominated position and related roles. The Tribunal accepts that the nominee has both relevant qualifications and experience to undertake the nominated position.

7. The position description lodged with the application included the following tasks:

   a.    Extensive knowledge and experience in all aspects of the operation of residential aged care facilities including experience in management of large residential multi‑site facility;

   b.    Understanding the social, emotional, psychological, spiritual and physical and mental health issues affecting older people, especially those on low income;

   c.     Proven interpersonal and communication skills with the ability to build effective relationships both internally, externally and with people from diverse backgrounds;

   d.    Well-demonstrated ability to identify and resolved [sic] problems and/or make appropriate recommendations;

   e.    Well-developed time management and organisational skills, including the ability to plan workload, priorities and adapt to changing demands;

   f.   Understanding of and empathy with the values and ideals of the Brotherhood;

   g.    Proven interpersonal and communication skills with the ability to build effective relationships both internally, externally and with people from diverse backgrounds;

   h.    Ensuring the building (Premises) meets health and safety requirements and that facilities comply with legislation;

   i.   Keeping staff safe;

   j.   Taking responsibility for maintaining systems and processes that support accreditation standards for the residential aged care service and packaged care;

   k.     Supporting quality improvement activities; and

   l.   Developing monthly rosters to ensure adequate coverage is provided for each shift.

8. At the hearing, Mr Cai gave detailed oral evidence regarding the nominee’s role and responsibilities, consistent with the position description and the ANZSCO specifications. This included specific evidence of the nominee undertaking tasks such as:

   a.    Staff rosters, supervision and training;

   b.    Developing policies and procedures for staff to ensure excellence and minimise mistakes;

   c.     Management of the facility;

   d.    Coordinating the complex health needs of the residents with treating practitioners;

   e.    Liaising with relevant agencies;

   f.   Ensuring the facility meets the required standards for residential care;

   g.    Building relationships with staff and residents to ensure awareness of the complex needs of residents and that these are being met by staff and the facility;

   h.    Developing and implementing policies and procedures designed to keep staff and residents safe.

9. At the hearing, the nominee gave detailed oral evidence about her role and responsibilities and her history of working for the applicant in the nominated position. She stated that she saw an advertisement for a role at the facility and applied for it, noting that she had the qualifications and experience and was happy to work in a regional area. She stated that when she first started working for the applicant, she was on a student visa so could only work 20 hours a week. She stated that the applicant was happy with her skills and noted that she had a good relationship with the residents and other staff and was given more responsibilities as a Supervisor. She stated that once she received her Diploma in Nursing in Australia, she then started as a Facilities Manager. She stated that she had prior experience as a district nurse and has four years’ experience managing facilities in India. She stated that she also has a Diploma in Management. She stated that she undertakes all the responsibilities of a Facilities Manager, including managing staff, ensuring the provision of quality care to residents, managing supplies and deliveries, communicating with families, state and federal departments and relevant authorities, and provision of medication to residents.

10. At the hearing, the Tribunal explored the extent to which she was managing the facility as opposed to providing nursing or carer services at the facility. The nominee stated that she has the qualifications and the authority to make all the necessary decisions to run the facility. She stated that she will speak to Mr Cai and discuss matters with him because he is the owner, but if he is working at the facility it is in the position of carer not facilities manager. Ms Kaur stated that most of her role is managing the business and the facility. She noted that because she is a nurse, she steps in to help staff when required and when she has the time. She stated that she works ordinary business hours Wednesday to Sunday, starting at 8.30 am on weekdays and 9.00 am on weekends and finishing at 5.00 pm. She stated that she rarely works overtime but gets paid overtime if she does. She stated that if there is an incident, she will stay later to resolve the issues and ensure all staff and residents are safe. She stated that she is emotionally attached to all the staff and residents and wanted to continue to work there. She stated that she was committed to continuing to perform the role of Facilities Manager at the business for at least two years after the grant of a permanent visa.

11. The Tribunal notes that the nominee has been granted a Subclass 491 visa allowing her to stay in Australia and work full-time for five years. At the hearing, Mr Cai gave evidence that he was pursuing the nomination application for a Subclass 187 visa on the basis that it was a genuine position and Mr Cai wanted to retain the nominee’s services for at least two years in the nominated position and provide the nominee job security. He stated that she was a very hard worker and that he and the residents were reliant on her to ensure the successful operation of the facility at the requisite standards.

12. The Tribunal has considered the totality of the evidence before it, including written and oral submissions and documentation and evidence relating to the nature of the business, and is satisfied that the majority of the nominee’s tasks are consistent with the tasks associated with the nominated position. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(D) is met.

13. There are no additional specifications relating to the nominated position. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(DA) is met.

14. Accordingly, the requirements of r.5.19(4)(h) are met.

15. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Phoebe Dunn
    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 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).