GA & LJ Nominees Pty Ltd (Migration)

[2023] AATA 4697

GA & LJ Nominees Pty Ltd (Migration) [2023] AATA 4697 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GA & LJ Nominees Pty Ltd

REPRESENTATIVE:  Mr Xiang Feng WANG (MARN: 0637238)

CASE NUMBER:  1933735

HOME AFFAIRS REFERENCE(S):          BCC2019/5294516

MEMBER:Alison Mercer

DATE:14 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 December 2023 at 4:47pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination – Office Manager – allegations should not be taken to be ‘adverse information’ known to Immigration – nominator is actively and lawfully operating a business in Australia – Tasks correspond to specified occupation – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 359, 376
Migration Regulations 1994, rr 1.13, 5.19

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 12 November 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, G A & L J Nominees Pty Ltd (trading as Thomson Linen Company), applied for approval of its nominated position of Office Manager on 22 October 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(f) of the Regulations, which required that the applicant had a genuine need for the nominated position. The delegate was not satisfied that the applicant’s business had expanded as claimed, and was also not satisfied that the applicant company had the financial capacity to pay the nominee the proposed salary for at least 2 years, as required by r.5.19(4)(d).

5. The Tribunal received a review application on 27 November 2019. It was lodged on behalf of the applicant by its director, Mr Geoff Thomson, and was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Dr Xiaokang Zhou, as the applicant’s representative and authorised recipient for correspondence. Subsequently, Mr Thomson appointed another registered migration agent, Mr Xiang Feng (Steven) Wang, to these roles.

6. On 20 June 2023, the Tribunal wrote to Mr Thomson via the agent to invite him, pursuant to s.359(2) of the Act to provide updated and current information indicating that the applicant met all of the relevant r.5.19 criteria (not merely the criterion that the delegate found was not met). The Tribunal requested that this information by provided by 4 July 2023.

7. On 30 June 2023, the applicant provided the following documents to the Tribunal:

   ·ABN and ASIC registration details for the applicant;

   ·job description for the nominated position;

   ·Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupational description for Officer Managers (512111);

   ·Seek job advertisement and invoice, August 2019;

   ·Sunraysia Daily job advertisement and invoice, August 2019;

   ·curricula vitae for candidates;

   ·recruitment report;

   ·certification by relevant regional certifying body, Swan Hill Rural City Council, dated 18 October 2019.

8. The applicant’s agent asked for an extension of time to provide additional material, and this was granted.

9. On 11 August 2023, the Tribunal received the following additional material:

   ·company tax returns for the financial years 2020/2021 and 2021/2022;  

   ·updated employment contract for the nominee, Ms Le Thi Hang, dated 7 August 2023;

   ·organisational structure chart;

   ·submission regarding the Office Manager nomination;

   ·income statements (30 June 2020) for the nominee for 2019/2020, 2020/2021, 2021/2022 and 2022/2023;

   ·notices of assessment for the nominee for 2020/2021, 2021/2022 and 2022/2023;

   ·superannuation statement (01 Jan - 30 Jun 2020);

   ·superannuation statement (01 Jul 2020 - 30 Jun 2021);

   ·superannuation statement (01 Jul 2021- 30 Jun 2022);

   ·superannuation statement (01 Jul 2022- 14 Jul 2023);

   ·recent payslips (03 Jul - 30 Jul 2023) for the nominee; and

   ·evidence of the expansion of the applicant’s business; namely, settlement reconciliation statement dated 29 August 2019 indicating that the applicant purchased Werner Linen from Wyatt Corporation Pty Ltd for approximately $473,000; undated asset sale agreement between the applicant and Wyatt Corporation Pty Ltd.

10. On 14 November 2023, the Tribunal wrote to Mr Thomson via the agent to invite him to attend a hearing on behalf of the applicant for this nomination, and another nomination lodged by the applicant for a Hospitality, Retail and Service Manager (not elsewhere classified), to be conducted by videoconference.

11. The Tribunal exercised its discretion to hold the hearing by videoconference as it determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, which is based in regional Victoria. 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 videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. On behalf of the applicant, Mr Thomson appeared before the Tribunal on 6 December 2023 to give evidence and present arguments. The applicant’s agent also attended the hearing by videoconference.

13. Mr Thomson told the Tribunal that he established the business 13 years ago, after ceasing work in a paramedic management role and taking a redundancy package. He and his wife also operated a houseboat business and realised there was no commercial laundry providing linen in the area. He engaged a consultancy firm and concluded that such a business would need to have a high volume of work. The business started with 2 motels in Mildura but it was evident that there was a great need in the area for commercial linen services. In 2011, Mr Thomson took a significant business loan of $2 to $3 million to expand the business, starting by buying out 2 smaller laundries in Mildura, and expanding its customer base to Balranald and Robinvale to the east. In 2019, the business was in negotiations with Werners, another commercial laundry in Berri, South Australia, and ultimately bought the land and the business, which the applicant now operated as a despatch point for its South Australian clients. The applicant sold off the Werners laundry equipment as it was outdated compared to what they had in Mildura. Mr Thomson said that 2 Adelaide linen laundry firms had withdrawn their services from the Riverland region of South Australia, so it was a great opportunity for the applicant. Mr Thomson said that most of the applicant’s clients were commercial operations (hospitals, hotels, motels, Air BnBs and more recently, 2 mining camps) but they also subcontracted for larger companies such Spotless, and Ellsco, for instance for the laundering of uniforms for Coles and Woolworths employees.

14. Mr Thomson told the Tribunal that the business recruited an Office Manager so that his partner and wife, Lesley, who was previously doing this role, could concentrate on researching new systems to support the expansion of the business. Mr Thomson said that they needed more assistance because their staff numbers had increased, their operations had expanded and they now had to comply with various regulations in Victoria and South Australia. He said that they obtained guidance from Employsure, a company that provided employment advice to businesses, but he needed a full time Office Manager to ensure that the business did comply with its various employment and OH&S obligations, amongst other things. They recruited Ms Le to this position after advertising the role, and she was the best qualified candidate. Ms Le’s role changed during the COVID19 pandemic, as she was during that period responsible for ensuring that the business’ delivery trucks complied with the state border rules, which involved significant compliance work. The Office Manager was also responsible for HR issues, organising training and keeping maintenance records for various equipment updated for insurance purposes.

15. In relation to the Business and Services Manager, Mr Thomson said that the nominee in this role worked closely with him to liaise with customers in various locations, analyse production costs and set pricing (particularly amortising delivery costs per item) and monitor transport and fuel costs, as well as the costs of gas and the chemicals used for the laundry work. The nominee for this role also dealt with new products and promoting them to existing customers.

16. Mr Thomson said that the value the business placed on the 2 nominees was evidenced by the fact that they retained them both during the whole COVID19 period, even though they were not entitled to be paid Job Keeper payments in relation to them. Both nominees had now been working in the applicant’s business for 4 years and had considerable knowledge of the business, which would be lost if they were unable to continue.

17. Mr Thomson said that generally, when the business advertised a position (such as the currently vacant Contract Administrator role), they would be contacted by employment agencies, individuals and (in some cases) a migration agent. While their preference was to hire locals if possible, this was not always possible, as attracting people to Mildura was quite difficult, given its significant distance from both Adelaide and Melbourne. He told the Tribunal that the nominees would not have been hired unless they had the required skills and experience to undertake their respective roles.

18. The Tribunal raised with Mr Thomson, pursuant to s.359AA of the Act, some information on the Department’s files for each nomination that was potentially adverse to each case. The Tribunal advised Mr Thomson the same information was on both files and was covered by a s.376 certificate, which indicated that the Department considered that it was not in the public interest to release it, but which allowed the Tribunal to provide that information to an applicant if it considered it appropriate and relevant to do so. The Tribunal told Mr Thomson that the information on the Department files indicated that the Department received 3 anonymous allegations in March 2017, January 2018 and June 2018 that indicated that the applicant had been paid to sponsor a visa applicant (or applicants). The Tribunal noted that no further detail was provided, and it was not clear whether these allegations related to either of the nominees whose cases were before the Tribunal. The Tribunal noted, however, that this information was relevant to the nomination reviews because, if the Tribunal accepted the allegations to be correct, it would indicate that the nominations would not meet the criteria requiring the positions to be genuine and that there was no adverse information known to Immigration about the applicant, and that if it found that any of the nomination criteria were not met, it would the reason to affirm the decisions under review.

19. The Tribunal indicated to Mr Thomson that he could respond immediately if he wished to, or he could elect to respond after a hearing break. Mr Thomson elected to respond immediately and told the Tribunal that he flatly denied that the business had been paid to sponsor or nominate any employee. He noted that the dates of the allegations pre-dated the employment of each of the nominees in the cases before the Tribunal, and he speculated that the allegations could have been made by a disaffected employee who felt jealous or threatened by the fact that the applicant had nominated an earlier employee. He also noted that he had held various prominent roles in the Mildura business community and this might have contributed to someone seeking to damage him.

20. In relation to the nominees’ salaries, Mr Thomson said that for the laundry staff, there was a specific Award, but for the admin staff, the starting point was another Award for administrative staff, but that the business recognised that it had to pay over the Award rates, partly to reflect the experience of the nominees and the overtime and/or travel they undertook as part of their work, and partly to be competitive with other employers. He reiterated that it was difficult to recruit and retain people to regional areas such as Mildura, so the business recognised that the salaries they offered had to be competitive. This was the same whether the admin roles were offered to an Australian or a temporary resident.

21. Mr Thomson told the Tribunal that he would turn 60 next year, and he and his wife intended to step back a little from the business, while their daughter would take up a bigger role. This made it all the more crucial to retain the nominees, who were experienced and valued employees.

22. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

23. 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)

24. 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).

25. 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.

26. The Tribunal is satisfied from its review of the material lodged with the Department that the applicant met the above requirement; in particular, that the nomination identified the nominee (Ms Thi Hang Le), the occupation of Office Manager, and the position of Business Manager.

27. Further, if the subclass identified in the application is subclass 187, the application must be made before 16 November 2019. The nomination application in this case was made on 29 October 2019 so this requirement is met.

28. 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)

29. 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.

30. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

    ·has contravened a law of the Commonwealth, a State or a Territory, or

    ·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or

    ·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or

    ·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or

    ·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).

31. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:

    ·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or

    ·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or

    ·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or

    ·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,

    ·one is or was able to exercise influence or control over the other, or

    ·a third person is or was able to exercise influence or control over the both of them.

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

1. As discussed at the hearing, the Department file contains a s.376 certificate, which in turn is stated to cover certain material on the Department’s file. A section 376 certificate can be issued by the Department if it believes that it would not be in the public interest to release  the information covered by it to the applicant, although s.376 provides a discretion for the Tribunal to do so if it considers that it should do so. As discussed at the hearing, other provisions of the Act, namely ss.359A and 359AA, impose an obligation on the Tribunal to give the applicant at least the gist of information it holds that is potentially adverse to their case, explain why it is relevant, and to allow them an opportunity to comment on or respond to the information (including seeking an extension of time to do so).

2. In this case, the Tribunal explained that the Department file related to this occupation contained a s.376 certificate covering allegations on file from an anonymous source (or sources) that:

   -    an allegation had been received in March 2017 re: possible payment for visa;

   -    a further allegation was received on 9 January 2018 that the employer had received payment from the visa applicant who had, and has, no intention to work for the employer; and

   -    a further allegation on 8 June 2018 that the business had accepted payment for business sponsorship.

3. A s.376 certificate covering the same material appears on the applicant’s other nomination review application file, 1933791.

4. It is not clear to the Tribunal to which nominee these allegations relate; the nominee in this case, or the nominee in the related case, or both.

5. It is not clear to the Tribunal to which nominee these allegations relate; the nominee in this case, or the nominee in the related case, or both.

6. As noted above, at hearing, Mr Thomson emphatically denied that his business had been paid to sponsor or nominate any person for a temporary or permanent residence visa. He speculated that the source(s) of the above allegations may have been disaffected employees who were not selected for the nominated position, or people unhappy with his profile in the Mildura business community.

7. The Tribunal considers that the above allegations should not – without more – be taken to be ‘adverse information’ known to Immigration about the applicant. There is no indication on the Department files that these allegations were investigated or substantiated, or are currently under investigation. There is no evidence before the Tribunal to indicate that there is any truth to these allegations, and they were strongly denied by Mr Thomson, who the Tribunal found to be a credible witness.

8. There is no evidence in the Department’s electronic records of any other adverse information known to Immigration about the applicant or any of its associates.

9. Given this, the Tribunal is satisfied that reg 5.19(4)(b) is met.

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

10. 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.

11. In this instance, the relevant State or Territory is Victoria, the relevant occupation is Office Manager and the date of application is 22 October 2019.

12. There is no evidence before the Tribunal to suggest that the nominated occupation has mandatory requirements for the nominee 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/

13. 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)

14. 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.

15. There is no evidence that the applicant has an unsatisfactory record of compliance with the laws of the Commonwealth or Victoria in relation to employment.

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

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

17. 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.

18. There is no evidence in the Department’s records to indicate that the applicant has a debt pursuant to s.1740ZO of the Act.

19. 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)

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

21. The Tribunal has reviewed the applicant’s website, which indicates that it operates a linen laundering service for hospitality, accommodation, industry and health care, based in Mildura in regional Victoria, and that it services North West Victoria and South West New South Wales.

22. Information from the Australian Securities and Investments Commission (ASIC) website indicates that the applicant is a currently registered company. The most recent financial reports provided indicate that in the 2021/2022 financial year, its total sales were $3,510,915 and its net profit was $763,375 after expenses were deducted, including total wage and salary expenses of $1,470,988.

23. The most recent organisational structure provided indicates that there are 2 directors, including Mr Thomson, an Office Manager (the role occupied by the nominee in this case), an Accountant (occupied by an Australian permanent resident), a Business and Service Manager (occupied by the nominee in the applicant’s related case with the Tribunal, 1933791), a Contract Administrator (position currently vacant), followed by an admin assistant, laundry supervisor, 9 laundry staff and 4 drivers at the Mildura branch, with similar staffing at the Berri branch, in relation to which it is stated ‘purchase of business will complete soon.’ At hearing, Mr Thomson confirmed that the applicant had taken over another laundry business in Berri and was using it as a ‘staging post’ for its own operations in that area.

24. Given the above, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.

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

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

26. 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.

27. There is no evidence before the Tribunal to indicate that the applicant’s business activities include those related to labour hire to other unrelated businesses.

28. 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)

29. 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.

30. In his pre-hearing written statement dated 7 August 2023, Mr Thomson provided the following submissions in support of the nominated position being genuinely needed within the applicant’s business:

    …

    This is to address a submission demonstrating the genuine need of a full-time Office Manager by G A & L J NOMINEES PTY LTD t/a Thomson Linen Company (TLC) and how the nominated position fits within the activities of the business.

    1.     Introduction of the business

    G A & L J NOMINEES PTY LTD t/a Thomson Linen Company is an established registered company in Victoria that operates in the commercial laundry industry under the business name Thomson Linen Company. The company provides a thoroughly individualized, reliable and quality service to the hospitality, industry, health and accommodation sectors in North West Victoria and South West New South Wales, incorporating the Sunraysia and Mallee regions.

    As Mildura’s only commercial steam laundry, the competitive difference is our laundry capacity to handle large volumes of linen with a professional finish. We are local, cleaning with steam, have a bulk supply and have first-hand experience in the hospitality, accommodation and health sectors. Quality clean linen can enhance our clients’ property and provide a positive customer experience. The following is an image from our website which shows the types of services and linens we cater. Our website can be viewed at

    Besides providing the most environmentally friendly “wash” in the region, our company also provides professional services and cost-effective linen solutions to our clients. Our linen service packages are individually tailored to best suit our clients’ needs in terms of cost, supply, quality and delivery schedule.

    …

    2.     An explanatory statement and evidence that shows that the position of an Office Manager has not been created for the purpose of facilitating the entry to, or stay in, Australia for the nominee

    (1)The nominated position of full-time Office Manager is necessary to the operation of the business

    The following pointers detail the necessity of hiring an Office Manager in our company:

    -    Office management helps to maintain a close relationship between the different departments and people. It performs various functions like planning, controlling, staffing, supervising, motivating and effective leadership. Therefore office management provides smoothness and stability to the day to day operations.

    -    Office management helps in increasing office efficiency, smooth flow of work, maintaining public relations, minimums of costs, managing change and accepting the new challenges which help in achievement of goals of the company.

    -    The office manager uses human and non-human resource for the achievement of the business objective. The office manager develops systems and procedures to make effective use of the resource. It helps to reduce wastage of time, resource and misuse of the resource.

    -    With the development of the business, the volume of paper work in offices has increased significantly due to industrialization, government control and application of various regulations and so on. It is important to achieve the efficiency of office management through proper control of activities, reduction of office costs and coordination of all activities of business.

    -    Office costs can only be reduced under the guidance and control of efficient management. Through better planning, sound organization and effective control, Office Manager enables to coordinate and integrate of various resources and reduce costs.

    (2)An explanatory statement and/or evidence that shows that the position has not been created for the purpose of facilitating the entry to, or stay in, Australia for the nominee.

    The nominated position of a full time Office Manager has not been simply created for the purpose of facilitating the entry of the nominee in Australia.

    With the development of business, it is necessary to have a full time Office Manager who is responsible for organizing all of the administrative activities that facilitate the smooth running of the business, such as maintain office services, maintain office records, maintain office efficiency and perform other related duties as required.

    We placed two job recruitment advertisements on the online recruitment website SEEK on 5 August 2019 and on the local newspaper Sunraysia Daily on 20 August 2019. Following the placement of the advertisement, we received a few phone calls and resumes in regards to the job vacancy advertisement. After careful consideration, Ms Thi Hang LE was regarded as a suitable candidate for the job and we decided to employ her as a full-time Office Manager.

    The nominee Ms Thi Hang LE obtained Diploma of Business, Bachelor of Art and Master in Business Administration, which meet our requirement on qualification set for this position, i.e Bachelor degree or higher. Moreover, at the time of sending resume, she has got more than 5 years’ work experience as an Office Manager at the time of sending resume. Her job duties are relevant to the duties that we expected, such as implementing and maintaining procedures/office administrative systems; organising office layout and ordering stationery and equipment; dealing with correspondence; organising meetings and managing databases; ensuring that the office is well maintained and identifying any maintenance issues.

    As satisfied with Ms Thi Hang LE’s qualifications and work experiences, we arranged an interview for her. After our interview, our Director was categorically satisfied with her professional knowledge, English language ability and long term commitment to the business. Therefore, Ms Thi Hang LE was regarded as a suitable candidate for the job. Thus we decided to recruit her as our full time Office Manager.

    The nominee Ms Thi Hang LE is not in any way related to the business, and the reason for this nomination is by no means to simply create a position for the purposes of facilitating the entry or stay of the nominee in Australia. The sponsorship of Ms Thi Hang LE is key to the business’s growth and success as this person would assist the business in properly managing all office and administrative tasks.

    …

    This chart will illustrate how the nominee fit into the business. In view of the chart, all our staffs are appointed with particular tasks that have a place with a specific division that will add to the accomplishment of the business. Their positions vary from full time, part time to casual. Moreover, with the development of business, more staffs will be needed.

    Duties and responsibilities of the nominated position are consistent with the tasks of the nominated occupation (code 512111) as listed in the ANZSCO.

    Duties and responsibilities of the nominated position of Office Manager:

    - Designs and implements office policies by establishing standards and procedures.

    - Maintains office services by organizing office operations and procedures; balancing office budges; controlling correspondence; designing filing systems; reviewing and approving supply requisitions; assigning and monitoring clerical functions.

    - Keeps management informed by reviewing and analyzing special reports; summarizing information; identifying trends.

    - Ensure filing systems are maintained and up to date.

    - Ensure protection and security of files and records.

    - Ensuring office equipment and supplies are maintained.

    - Assign and monitor clerical and secretarial functions.

    - Coordinating personnel activities such as hiring, promotions, performance management, training and supervision.

    - Liaising with professionals to coordinate office business and to facilitate resolution of problems.

    - Perform other related duties as required.

    Given the above mentioned tasks, it is evident that the position is consistent with the tasks of the nominated occupation (code 512111) as listed in the Australian and New Zealand Standard Classification of Occupations. According to ANZSCO, an Office Manager performs “organise and control the functions and resources of an office such as administrative systems and office personnel.” This certainly proves that the tasks and duties are consistent with the duties and responsibilities of the nominated position. Furthermore, the nominee will spend 100% of her time doing the tasks that she will be undertaking.

    Split in duties between the nominated position and our Directors and other positions in the business

    As the Directors of the company, Mr Geoff Thomson and Ms Lesley Cattanach will be responsible for overseeing the operations of the business, concentrating on sour profitability and sales and device marketing and sales strategies for TLC. To separate Directors tasks from that of the nominee, I have laid out the following business aspects that I will be focusing on:

    - Leadership

    - Operational planning and management

    - Financial planning and management

    - Human resources planning and management

    - Risk management

    Moreover, we have laid out some of the tasks of our other employees in the business to clarify the split in duties between the nominated position and other positions in the business. Please see the table below. The duties of the full-time Office Manager are specific to the nominated position alone and are not shared among any existing positions at that level.

Position

Duties and Responsibilities

Laundry Supervisor

-    Responsible for proper handling of clients’ laundry and establish standards and procedures to ascertain quality of work performed

-    Check daily production according to priorities

-    Supervise and monitor the performance of the laundry staff in order to maintain established standards and provide efficient service to clients

Business and Service Manager

-    Effectively manage staff members to ensure team objectives and sales goals are being carried out

-    Develop working knowledge of industry regulations, restrictions and laws and ensures service department adheres to all regulations

-    Resolve problems and improves current service methods to increase productivity and customer service

Accountant

-    Prepare, examine and analyse accounting records, financial statements and other financial reports

-    Prepare balance sheet, profit and loss statement, and other reports

-    Prepare special financial reports by collecting, analysing and summarising account information and trends

Contract Administrator (vacant at the moment)

-    Oversee proposal planning and administration of contracts

-    Develop, review and negotiate variations to contracts

-    Prepare contract briefs summarising contractual requirements and budgets

-    Manage paperwork associated with contracts and services provided

Administration Assistant

-    Provide office services by implementing administrative systems, procedures and policies and monitoring administrative projects

-    Maintain supplies inventory by checking stock to determine inventory level, anticipating needed supplies; verifying receipt of supplies

Laundry staffs

-    Sort articles to be cleaned by fabric type, colour and cleaning technique

-    Load clothing into laundry and dry-cleaning machines

-    Add detergent, bleach and other chemicals to laundry and dry-cleaning machines

Drivers

-    Deliver linens to and from different addresses and through different routes

-    Load, unload, prepare, inspect and operate the delivery vehicles

-    Follow routes and time schedules

3.     The nominee Ms Thi Hang LE has been working on the nominated position (Office Manager) for our company since 13 January 2020 to till now

Ms Thi Hang LE has been working for our company as a full time Office Manager since 13 January 2020. During her employment, she is able to perform her duties in high standard with great team work and smooth communication with customers.

Evidences demonstrating Ms Thi Hang LE’s daily works are as below:

1) Income Statement FY 2020-2023_Thi Hang LE

2) Notice of Assessment FY 2020-2023_Thi Hang LE

3) Superannuation Statements (Jan 2020 – Jul 2023)_Thi Hang LE

4) Recent payslips (03 Jul - 30 Jul 2023)_Le Thi Hang

We are satisfied with Ms Thi Hang LE’s qualifications, skills and communication ability. We believe the acquisition of Ms Thi Hang LE will ensures stability for the business and be necessary for the business to grow in stature within the industry.

4.     Evidence showing that G A & L J NOMINEES PTY LTD t/a Thomson Linen Company can support the position financially

Our company has the financial capacity to support the nomination of a full time Office Manager. The company’s Tax Return for the year ended 30 June 2022 will accompany this letter to support our claims that our business is in a sound financial position to employ the nominated position. Below are snapshots of these documents. Those show Total Income of $3,612,627 with total profit of $763,375 for the financial year 2022 will accompany this letter to support my claims that my business is in a sound financial position to employ the nominated staff.

5.     Confirmation of availability of position for Ms Thi Hang LE

Mr Geoff Thomson, Director… has confirmed that the position for Ms Thi Hang LE in the occupation of Office Manager on full time basis is still available.

6.     Conclusion

We believe we have met all requirements by the nomination. These requirements met were specified in Reg. 5.19(4) in terms of being in regional area, need for a paid employee, nominee under the direct control of the nominator, approved occupation, appropriately certified by RCB, and etc. We also met Reg. 5.19(2) required application forms, certification.

With the presence of an Office Manager in G A & L J NOMINEES PTY LTD t/a Thomson Linen Company, the business is able to achieve greater success. Knowing this, we hope you will consider the business’s nomination of a full-time Office Manager.

…

1. The Tribunal acknowledges that the delegate was not satisfied that the applicant had a genuine need for the nominated position for an Office Manager, or that the applicant had the financial capacity to pay the nominee to work on a full time basis for at least 2 years.

2. The Tribunal has had the benefit of considerable additional documentary evidence, and of being able to take detailed evidence from 1 of the applicant’s directors, Mr Geoff Thomson, at hearing. The Tribunal found Mr Thomson to be a credible witness who was able to give spontaneous and detailed evidence about the establishment, operations and expansion of the applicant’s business, and the way in which it identified the need for the nominated position within the business and selected the nominee Ms Le as the most suitable candidate.

3. The Tribunal is satisfied that the nominated position is a management role that has largely taken over much of the work previously undertaken by Mr Thomson’s wife and business partner, Ms Lesley Cattanach; namely, to ensure that the business complied with its various employment and OH&S obligations, including during the COVID19 pandemic, when she was responsible for ensuring that the business’ delivery trucks complied with the state border rules, which involved significant compliance work. The Tribunal is satisfied from Mr Thomson’s evidence that the Office Manager was also responsible for HR issues, organising training and keeping maintenance records for various equipment updated for insurance purposes.

4. The Tribunal is further satisfied that the applicant recruited the nominee, Ms Le, through its usual recruitment methods, and that she has now occupied the role for nearly 4 years, including through the period of the COVID19 pandemic (2020 – 2022), during which time the applicant retained her even though it was not entitled to claim Job Keeper payments in respect of her.

5. In the Tribunal’s view, this indicates the position is genuine, and is genuinely needed within the applicant’s business (particularly since it is still expanding).

6. The Tribunal is therefore satisfied that the applicant has identified a need for the identified person to be employed in the position, under the direct control of the applicant, and that this need is genuine.

7. 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)

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

9. 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.

10. 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.

11. 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.

12. The nominee’s most recent employment contract is dated 7 August 2023, and indicates that she is offered a 3 year contract (with no preclusion of extension beyond this period) on a full time basis upon grant of a subclass 187 visa, and that her salary is $65,000 plus superannuation and overtime entitlements (if relevant).

13. From the above information, the Tribunal is satisfied that rr.5.19(9)(e) and (f) are met. From the most recent financial information provided, notably the applicant’s 2021/2022 financial statements and the nominee’s recent PAYG summary statements and tax assessment notices, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee for at least 2 years and pay her the annual market salary rate (discussed further below) for that period.

14. Accordingly, the Tribunal finds that r.5.19(9)(g) is met.

    Annual earnings – reg 5.19(9)(h)

15. 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 (currently $250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT) (for this application, $53,900), 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).

16. As the annual earnings in relation to the occupation will not be at least the specified amount of $250,000, the requirements of reg 2.72(15) must be met.

17. The Tribunal has had regard to item 8 of IMMI 18/033, which provides that the appropriate method for determining the AMSR where there is no equivalent Australian employee is to look at the applicable Award (if any), or is there is no applicable Award, then ‘relevant information.’ The Tribunal is satisfied that there is no equivalent employee to the Office Manager in this case.

18. Accordingly, the Tribunal has had regard to a number of sources of salary information, including the following:

    ·Payscale website [accessed 2 December 2023] – this indicates that the average Office Manager salary in Australia is $65,763 per year;

    ·the Australian government’s Labour Market Insights website [accessed 2 December 2023] provides the median earnings per week for an Office Manager in Australia is $1,501 (which annualises to $78,052); and

    ·Seek.com.au [accessed 2 December 2023] – lists the following Office Manager positions in Victoria (taking only those that list a salary range):

    oOffice Manager, private company, Melbourne suburbs, $80,000 to $100,000 package (advertised 2 December 2023);

    oOffice Manager, private company, Melbourne suburbs, $80,000 to $90,000 (advertised 27 November 2023);

    oOffice Manager/Administration, private company, Melbourne suburbs, $65,000 to $80,000 (advertised 25 November 2023); and

    oOffice Manager, private company, Melbourne suburbs, $70,000 to $75,000 (advertised 30 November 2023).

19. Given the above, the Tribunal is satisfied that the current salary range for this occupation is generally between $65,000 to $80,000. The Tribunal therefore considers it appropriate to take the AMSR to be $70,000.

20. For the above reasons, the Tribunal finds that the requirements of reg 2.72(15)(c) are met with regard to the method for determining the AMSR.

21. Moreover, the Tribunal is satisfied that the AMSR of $70,000 exceeds the TSMIT of $53,900 and it finds that the requirements of reg 2.72(15)(d) are met.

22. The Tribunal finds that that the nominee’s annual earnings of $65,000 do not meet or exceed the AMSR of $70,000, and it finds that the requirements of reg 2.72(15)(e) are met, but considers it reasonable in the circumstances of this case to disregard this requirement. The Tribunal reaches this conclusion on the basis that the nominee’s base salary is only $5,000 short of the AMSR, and that the Office Manager position in this case is based in a relatively small (though successful) regional business. Given the wide salary range for this occupation, and the fact that it can be found across a wide range of industry sectors and in quite different sized businesses, the Tribunal considers it reasonable in this case that the nominee’s salary is $5,000 less than the AMSR, which is based on a survey of Office Manager positions throughout Australia in a range of businesses.

23. Finally, the Tribunal is satisfied that the nominee’s annual earnings will not be less than the TSMIT, and for these reasons, it finds that the requirements of reg 2.72(15)(f) are met.

24. There is no information before the Tribunal that indicates the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

25. 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)

26. 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.

27. There is no evidence before the Tribunal to indicate that the nominee’s employment conditions (other than in relation to her earnings) will be less favourable than those that would apply to an Australian employee performing equivalent work at the same location.

28. 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)

29. 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 187 visa, and the Tribunal is satisfied the nomination was made on 22 October 2019.

30. Regulation 5.19(12) contains a number of requirements including that:

    ·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).

    ·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).

    ·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).

    ·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).

31. The Tribunal is satisfied that the postcode where the nominee will be employed, and where the applicant’s business operates, is 3500 in Mildura, Victoria. The Tribunal has reviewed the relevant instrument, IMMI 18/037, which indicates that this postcode is in regional Australia for the purposes of r.5.19.

32. The Tribunal is satisfied that the Swan Hill Rural City Council, one of the listed RCBs, certified the required matters on 31 October 2019.

33. IMMI 19/047 specifies the approved occupations for the purposes of this requirement, and the Tribunal is satisfied that it includes the occupation of Office Manager (ANZSCO code 512111), and that the occupation is not subject to any caveats.

34. The occupational description for an Office Manager in the Australian and New Zealand Classification of Occupations (ANZSCO) online dictionary provides as follows:

    …

    5121 Office Managers

    Office Managers organise and control the functions and resources of offices such as administrative systems and office personnel.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    • AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    In New Zealand:

    • NZQF Diploma (ANZSCO Skill Level 2)

    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    • contributing to the planning and review of office services, and setting priorities and office service standards
    • allocating human resources, space and equipment
    • assigning work to and monitoring work performance of staff
    • managing records and accounts of the office
    • liaising with Professionals to coordinate office business and to facilitate resolution of problems
    • ensuring office equipment and supplies are maintained
    • ensuring compliance with occupational health and safety regulations
    • ensuring work complies with relevant government legislation, policies and procedures
    • coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision

    Occupation:

    • 512111 Office Manager

    512111 Office Manager

    Organises and controls the functions and resources of an office such as administrative systems and office personnel.

    …

35. As noted above, the Tribunal acknowledges that the occupation of Office Manager may be found in a wide range of occupational or industry sectors, including (in this case) a commercial laundry services provider. It is satisfied that the applicant’s operations require an Office Manager.

36. The Tribunal accepts the detailed and credible evidence provided by Mr Thomson at hearing regarding the nature and scope of the duties in the nominated position of Office Manager, and is satisfied that they largely correspond with the duties set out in ANZSCO for the occupation.

37. Finally, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, Mildura. In reaching this conclusion, the Tribunal gives weight to the evidence of Mr Thomson that recruitment and retention of employees in the nominated position has been an ongoing issue for the applicant in Mildura, an assertion that is also supported by the RCB in its certification dated 31 October 2019. The Tribunal accepts that these difficulties would have been exacerbated due to the international and domestic travel restrictions imposed as a result of the COVID19 pandemic. While it notes that the most recent Skills Priority List published by the Australian government’s Jobs and Skills Australia (formerly National Skills Commission) in 2023 indicates that the occupation of Office Manager is not in shortage in any state in Australia, the Tribunal is nevertheless satisfied that the applicant has to date been genuinely unable to fill this position locally.

38. Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.

100. 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

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

Alison Mercer
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)either:

(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

…

Direct Entry stream—additional requirements for approval

(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

(a)the nominator is actively and lawfully operating a business in Australia;

(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;

(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(i)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(j)the requirements set out in subregulation (10) or (12) are met.

Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

(10)The requirements of this subregulation are as follows:

(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

(i)made under subregulation (11); and

(ii)in force at the time the application is made;

(b)the occupation applies to the identified person in accordance with that instrument.

(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a)the nominator;

(b)the identified person;

(c)the occupation;

(d)the position in which the identified person is to work;

(e)the circumstances in which the occupation is undertaken;

(f)the circumstances in which the person is to be employed in the position.

Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

(12)The requirements of this subregulation are as follows:

(a)the position is located at a place in regional Australia;

(b)the business operated by the nominator is located at that place;

(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

(i)made under subregulation (13); and

(ii)as in force at the time the application is made;

(e)the occupation applies to the identified person in accordance with that instrument;

(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

(i)whether the identified person would be paid at least the annual market salary rate for the occupation;

(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(g)the body must:

(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

(ii)be located in the State or Territory in which the position is located; and

(iii)have responsibility for the local area in which the position is located.

(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a)the nominator;

(b)the identified person;

(c)the occupation;

(d)the position in which the identified person is to work;

(e)the circumstances in which the occupation is undertaken;

(f)the circumstances in which the person is to be employed in the position.

…

Meaning of regional Australia

(16)In this regulation:

regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.