Fitzroy Childcare Pty Ltd (Migration)

Fitzroy Childcare Pty Ltd (Migration) [2024] AATA 3137 (16 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Fitzroy Childcare Pty Ltd
REPRESENTATIVE:  Mr Richard James Pedley
CASE NUMBER:  2210685
HOME AFFAIRS REFERENCE(S):          BCC2021/747173
MEMBER:Amanda Mendes Da Costa
DATE:16 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 16 August 2024 at 10.20am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry stream – Chef – genuine need – early learning centre – meals and snacks for staff and children – distinguished from position of a Cook – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2022 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 23 December 2021. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream, and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the applicant had not demonstrated a genuine need for the applicant to employ the nominee to work in the nominated position (Chef ANZSCO 351311) under their direct control.
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 based on the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review.
The documentation provided to the Tribunal for the purpose of the review includes the following:
·Unit Trust Deed for The Fitzroy Childcare Trust.
·Financial statements.
·ASIC current and historical extract for the applicant.
·Market salary report dated March 2023.
·Hospitality Award Pay Grade.
·Staffing Guide dated June 2024.
·Business activity statements dated September 2023, December 2023, and March 2024.
·Extract from ACEQA.
·Organisational chart.
·Genuine need statement.
·Employment contract dated 13 December 2021 and updated employment contract dated 12 August 2024.
·Position description for Chef.
·Salary surveys and advertisements in SEEK and Jora.
·Hospitality Industry (General) Award 2020.
·Levy payment receipt dated 23 December 2021.
·ABN extract.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
The Tribunal has reviewed the documentation in the Department’s file and is satisfied that the application was made on the approved internet form. Within that form, the applicant has provided the relevant s245AR(1) certification, the position has been identified, a person and an occupation relation to the position have been identified and the visa subclass and stream to which the nomination relates have been identified. Departmental records confirm that the application fee has been paid.
Based on the information in the Departmental file, and the training levy receipt provided, the Tribunal is satisfied that the application identified the annual turnover of the applicant’s business and was accompanied by the nomination training contribution charge.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with it.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration, and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Victoria, the relevant occupation is Chef, and the date of application is 23 December 2021.
The Tribunal is not aware of any mandatory licensing, registration, or professional memberships required for persons to work at Chefs in Victoria.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or Victoria relating to employment.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
The Tribunal is satisfied that the applicant paid the required training contribution charge at the time the application was made. Therefore, no training contribution debts have accrued.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant has provided the Tribunal with its current ASIC records, recent BAS, financial statements, and other information relating to its business operations. Based on the documentation before it, the Tribunal is satisfied that the applicant is actively, lawfully, and directly operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
The Tribunal has considered the employment contract between the applicant and the nominee dated 13 December 2021 and the updated employment contract dated 12 August 2024 and notes that it sets out the nominee’s place of work as 300/302 Nicholson Street, Fitzroy, Victoria, 3065. The Tribunal notes that this is the address of the applicant’s childcare business. Based on the evidence available at review, the Tribunal is satisfied that the nominated position of Chef is a permanent, full-time position within the applicant’s business and does not involve any on-hiring to any unrelated business.
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)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal notes that the delegate considered that Chefs are leadership positions in a dining establishment that involve managerial tasks such as planning menus, monitoring the quality of dishes, preparing, and cooking food and advising on cooking procedures. While The delegate further observed in their decision that Chefs are not expected to spend the majority of their time preparing and cooking food on a daily basis.
The delegate found that whilst the job description for the nominated position appeared to entail most of the tasks of a Chef the nominee’s job advertisements suggest the position it was recruiting appeared to be that of a Cook, rather than a Chef.
The Tribunal notes that the description of the tasks of a Chef in the ANZSCO dictionary includes the following:
·Planning menus, estimating food and labour costs, and ordering food supplies.
·Monitoring the quality of dishes at all stages of preparation.
·Discussing food preparation issues with Managers, Dieticians and kitchen and waiting staff.
·Demonstrating techniques and advising on cooking procedures.
·Preparing and cooking food.
·Explaining and enforcing hygiene regulations.
·Mays elect and train staff.
·May freeze and preserve food.
The applicant operates an early learning centre located in Fitzroy Victoria, which provides childcare for children aged six weeks to school age and three and four year old kindergarten.
Included in the services provided at the centre are an art program, cooking classes and a food garden program. The staff and children at the centre are provided with meals and snacks during the day. The nominee is responsible for preparing and cooking meals and snacks and also for supervising and instructing kitchen staff who are engaged in those activities.
The nominee is required to consider the nutritional needs of the children and staff and to ensure that meals and snacks take into account individual food allergies. The nominated role has particular challenges because the nominee is required to present food which is not only tasty but also attracts young palates. Given the young ages of the children the nominee is also required to pay particular attention to hygiene regulations and to ensure that other staff involved I the preparation and cooking of food also adhere to these requirements.
Having considered the position description, organizational chart, and publicly available information online about the centre, the Tribunal is satisfied that the tasks of the nominated position are more aligned to those of a Chef than a Cook.
Accordingly, the Tribunal is satisfied that the application has identified a need for the nominee (Fausto Barona Ferron) to be employed in the nominated position under the nominator’s direct control, and that the need is genuine.
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)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The Tribunal has considered the financial documentation provided together with the contract of employment and updated contract of employment. Based on this material, the Tribunal is satisfied that the nominee will be employed full-time for at least 2 years and the terms and conditions of the nominee’s employment will not exclude the possibility of extending the period of employment.
Having considered the annual market salary rate identified by the applicant ($55,000) and the financial documentation provided, the Tribunal is satisfied that the nominator’s business has the capacity to employ the nominee for at least 2 years and pay him at this rate.
Given the above findings, the Tribunal is satisfied that regs 5.19(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator, respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings.’ Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
Section 5 in IMMI 18/033 specifies the annual earnings for the purpose of r.2.72(15)(b) to be $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
As set out above, the applicant has provided evidence with its application supporting the method used to determine the annual market salary rate for the nominated position of Chef, being a reference to the current market rate for the nominated position identified by means of market surveys, job advertisements for comparable positions and the relevant industrial award. The Tribunal is satisfied that the calculation of the nominee’s salary of $73,150.00 (as set out in the updated employment contract dated 12 August 2024) plus superannuation has been determined in the manner required. For these reasons, the requirements of reg 2.72(15)(c) are met.
The TSMIT is $53,900, so the salary of $73,150.00 per annum that has been offered to the nominee exceeds this amount. For these reasons, the requirements of reg 2.72(15)(d) are met.
As set out above, the Tribunal is satisfied that this remuneration arrangement gives the applicant a salary more than the average salary expected to be paid to a Chef in Australia. For these reasons, the requirements of reg 2.72(15)(e) are met.
The nominee has not been offered any non-monetary benefits as part of the employment contract. Therefore, the proposed remuneration represents a cash figure. Therefore, the annual earnings will be above the TSMIT. For these reasons, the requirements of reg 2.72(15)(f) are met.

The Tribunal is satisfied that there is no information before Immigration to indicate that the annual market salary rate for the nominated position is inconsistent with Australian labour market conditions relevant to the occupation of Chef. For these reasons, the requirements of reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Tribunal has considered the terms and conditions of the nominee’s employment set out in the employment contract, and notes that the nominee’s employment conditions appear to accord with the requirements set out in the National Employment Standards.
Therefore, based on the evidence before it, the Tribunal is satisfied that the nominee’s 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 in the same workplace at the same location.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 186 visa.
Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument. In this case, the relevant instrument is LIN 19/049.
Further, for nominations made before 12 August 2018, reg 5.19(10)(c) requires that certain specified training requirements are met.
The applicant’s business is located in Fitzroy, Victoria and based on the genuine need statement, position description together with the employment contract and updated employment contract, the Tribunal is satisfied that the tasks to be performed by the nominee in the nominated position will be performed in Australia and correspond to the tasks of the occupation of Chef specified in the relevant instrument.
The Tribunal notes that LIN 19/049 provides that the following inapplicability conditions are relevant to the occupation of Chef:
7. The position is involved in mass production in a factory setting.
8. The position is in a limited-service restaurant.
The nominated position is for a Chef in the nominator’s business, which is a centre providing childcare and kindergarten programs for pre-school age children. The position involves developing menus together with preparing and cooking meals for the centre’s children and staff. Accordingly, the Tribunal is satisfied that the position is not involved in mass production in a factory setting and is not inn a limited-service restaurant.
Given the application was made on 23 December 2021 the Tribunal is satisfied that there are no specified training requirements to be met under reg 5.19(10(c).
Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Amanda Mendes Da Costa
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(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.

[2024] AATA 3137

16 August 2024

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Immigration

Administrative Law

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