GHK Food & Beverage (Aust) Pty Ltd (Migration)

[2020] AATA 4950

GHK Food & Beverage (Aust) Pty Ltd (Migration) [2020] AATA 4950 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GHK Food & Beverage (Aust) Pty Ltd

CASE NUMBER:  1804487

DIBP REFERENCE(S):  BCC2016/3134670

MEMBER:Danielle Galvin

DATE:13 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 October 2020 at 1:27pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Hotel Manager – financial capacity to maintain employment – active and lawful operation – business ceased to operate in May 2019 – VCAT proceedings in relation to the lease agreement for the business – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 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 Immigration on 2 February 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 21 September 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the applicant had failed to demonstrate that the business has the financial capacity to employ the nominee on a full-time basis in the nominated position for 2 years.

5. On 25 November 2019 the Tribunal invited the applicant to provide updated and current information in support of the review application. Any response in writing was required by 9 December 2019.

6. The Tribunal has had access to the following documents:

   ·Employment contract dated 13/7/16 and signed by nominee and Purnima Koli (as authorised for Co.) between the applicant and Mrs Sukhpreet Kaur in the position of Motel Manager in Ararat on $50,000pa plus super;

   ·Commercial Lease agreement, the tenant being the nominator and guaranteed by Purnima Koli for the Central Hotel in Ararat rent pa is $36,400 plus GST for 5 years commencing 1/6/16;

   ·Self generated document entitled “Hotel and Motel Manager Labour Market Test, Market Salary Report, 187RSMS visa” noting co. has registered 5 trading names for accommodation, beer and mineral water, Notes hotel business is undergoing renovations, states that “the business will also be advertising and marketing its rooms online extensively through…” notes various websites. Contains a proposed organisational chart noting that Poonima Koli is director and below is Sukhpreet Kaur as Motel Manager with provision for a cleaner (casual), a house keeper (casual) and a fulltime cook not yet filled. The genuine position statement states that manager will be responsible for the day to day operations. Claims that labour market testing was done through word of mouth and through industry contacts. It details the method of advertising but lacks explanation of the alleged results;

   ·ASIC business name extract for City Centre Accommodation;

   ·Projected Business budget for year 1 $195,293; noting salaries as $70,320, noting permanent staff at $55,000 and casuals at $22,000;

   ·7/6/16 bundle of WANT PAYG

   ·evacuation floor plans;

   ·Regional Sponsored Migration Scheme-Regional Certifying Body Advice-Form 1404 for Motel Manager on $50,000landlord of the applicant’s rented premises entered and reentered the premises in April 2019 and in May 2019 dated 13/9/16;

   ·Application for Employer Nomination for a permanent appointment-claiming that the business employees 3 Australians and 1 foreign employee, 2 of the Australians are professionals and 2 are tradespersons, $0 for last 12 months salaries, other migrating family members , child-Harnoor Bajwa, partner-Dinesh Kumar. Declaration position will be full-time for at least 2 years;

   ·Business registration certificate;

   ·Unprocessed through the Australian Taxation portal BAS 1/7/17-30/9/17 noting total sales $41,083 and salaries $14,306;

   ·Photo bundle;

   ·Unprocessed through the Australian Taxation portal BAS 1/1/17-31/3/17 sales $22,926, no mention of salaries;

   ·Unprocessed through the Australian Taxation portal BAS 1/4/17-30/6/17- SALES 424,906, no mention of salaries;

   ·screen shot receipt of payment of $793 to nominee from nominator 8/12/17 described as salary;

   ·undated quarter end projection reports 2018 & 2019 by DT chartered accountants Pty Ltd noting sales Dec 2017, $59,563, salaries $19,801; March 2018 sales $71,362, salaries $24,904; June 2018 sales $20,309, salaries $29,952; Sept 2018, sales $108,231, salaries $44,388;Dec2018 sales $119,685, salaries $45,550;March 2018 sales $127,384, wages $49,890;June 2019 sales $136,524, salaries $52,880

   ·undated letter from nominator attaching documents and stating that nominee commenced work part time in April 2017;

   ·self generated pay slip for nominee dated 15/12/17 for period 4/12/17to 10/12/17 gross pay $961.40;

   ·Unprocessed through the Australian Taxation portal  Co. Tax return FYE 30/6/17 income $43,483, salaries $9,250;

   ·Self generated pay slip for nominee for 27/11/17-3/12/17 for $961.40;

   ·Screen shot receipt of nominee for $793 dated 15/12/17 described as salary from nominator;

   ·Department certificate re disclosure of this info;.

   ·Application for review dated 20/2/1;

   ·New Agent’s submission dated 23/6/18 claiming nominee commenced full-time in Sept 2017 but employed full-time since December 2017 attaching the following;

   1.Draft BAS for 1/1/18-31/3/18, sales $79,037, salaries $36,977;

   2. Business brochure;

   3.Agent appointment;

   4.Complete disclosure certificates of nominee and nominee’s partner;

   5.Employment contract;

   6.Self generated payslip for 7/5/18-13/5/18 of $962 gross;

   7.test result of nominee.

7. On 9 December 2019 the agent emailed submissions to the Tribunal dated 9/12/19 referring  to a dispute with the nominator’s landlord and relocation of the business and therefore not all financial documents are available. The letter also states that after relocation the nominee will be employed. The following documents were submitted:

   ·Business advertisement;

   ·ASIC business name search;

   ·Regional certification Form 1404;

   ·ASIC company search;

   ·Undated self generated labour market test and market salary report;

   ·Financial statements FYE 30/6/2019, income $2018 $249,846.22 and wages $95,956 and for 2019 sales $191,492.99 and wages $64,495;

   ·letter from nominator’s director, dated 15/8/16 to Wimmera Development Association in relation to the application for RSMS Subclass 187 visa attaching document including and organisational chart referring to nominee as Hotel Manager under director but 3 other employees 2 casual and 1 full time cook;

   ·regional support information checklist;

   ·Co. tax return FYE 30/6/2018 income $249,846 and wages salaries $95,956;

   ·Unprocessed through the Australian Taxation Portal BAS 1/4/19-30/6/19 stating income at $ for 2019 $191,492.99 and for 2018 $249,846.22 and for 2019 wages $64,495 and for 2018 $95,956.;

   ·Undated job add on Jobactive attached to submission in relation to market testing

8. On 20 February 2020 the Tribunal invited the applicant under 359A of the Act to comment on or respond to information that the Department issued a certificate on 24 May 2019 pursuant to s.376 of the Act  and the potentially adverse information that since June 2016, the business was not viable, that a visa had been sold, that the manager was Gopal Koli and that the restaurant has been closed for months. A response was required by 5 March 2020. An extension of time in which to reply was sought and granted so that a response in writing was required by 2 April 2020. On 2 April 2020 a further request was made to seek an extension of time in which to comply.

9. However, on 2 April 2020 submissions were emailed to the Tribunal together with supporting documents. The submission states, in relation to the potential adverse information, that the allegations are false. It states that whilst trading the business did not suffer a loss and refers to financial statements to support this position. It refers to legal proceedings in VCAT which were resolved but the terms of settlement were not submitted nor were particulars of the settlement terms. The submission claims that the nominator has been actively seeking new premises but due to COVID-19 has not been able to secure them. .The submission denies that any visa was to be sold and that no share in the in the business was to be sold. The submission further states that the restaurant business is unrelated to this nomination. The submission confirms that the nominee was employed on a fulltime basis from April 2017 to June 2019. It claims that as a result of the landlord’s actions the business suffered disruption from 23 April 2019 and suffered a trading loss and due to the consequences of COVID-19 these are matters beyond the control of the applicant. It further submits that the applicant has the ability to ”sustain profits over a period of time  and the nominee will be employed by the business on a full-time basis for a period of two years once it starts operating”. The following documents were also submitted:

   ·Undated and undeclared statutory declaration of Purnima Koli declaring that they are the sole director of GHK and the business owner. The company secured premises at 129-131 Buckley Street Arrarat on 15 June 2016 and began operating a motel from 15 September 2016 called City Centre Accomodation. It was alleged that the landlord wrongfully entered the leased premises and as a result the business ceased to trade from 24 April 2019 to 2 May 2019. It is further alleged that the landlord again wrongfully entered the premises on 21 May 2019 and the company ceased trading from that date. The company initiated legal proceedings against the landlord which were settled on 2 October 2019. It is declared that no new premises have been secured and with the onset of COVID-19 this has been thwarted. It is also declared that no benefit was received for this nomination;

   ·Points of claim dated 5 August 2019 in VCAT proceedings issued by GHK against C.M.Carmen, the landlord, in relation to the lease agreement for the business. They detail the service of a notice of default issued by the landlord on 8 April 2019 but does not state for what but demanded a sum of $9,235.47. Part payment was stated to have been made of $8,465.47 but the landlord re-entered the premises on 23 April 2019 and terminated the lease.

   ·A further copy of self generated GHK food and beverage (Aust) Pty Ltd Hotel and Motel labour market test;

   ·Unprocessed through the Australian Taxation portal financial statement for 2019 of GHK stating income for 2018 was $249.846.22 and for 2019 was $191,492.99 and wages for 2018 were $95,956 and for 2019 were $64,495. It was alleged that the notice was defective and the termination wrongful and damages of $310,00 sought inter alia and return of goods;

   ·Self generated Property listing enquiries, undated and the source unverifiable;

   ·Self generated payslips for the nominee for 12 April 2017 to 5 June 2019;

   ·Statutory declaration of nominee declared 2 April 2020 declaring that they were employed as a Motel Manager for the nominator from 3 April 2017 to 2 June 2019, and that they did not provide a benefit for the nomination.

   ·ASIC company extract as at 29 November 2019 for GHK;

   ·text printout exchanges.

10. On 6 April 2020 further submissions were submitted by the applicant which attached a letter from Rosendorff Lawyers in relation to the settlement dated 6 April 2020 in which it was noted that the landlord of the applicant had entered the premises in April and May 2019 ultimately  serving a default notice and the applicant in consequence issued proceedings at the Victorian Civil and Administrative Tribunal (VCAT). That matter resolved by the applicant and its landlord entering into terms of settlement on 2 October 2019. The letter stated that the landlord was in breach of terms of settlement as at 16 March 2020 as the applicant was not able to collect its goods from the premises in January 2020. The letter attached a dated version of the Statutory declaration of Purnima Koli.

11. On 10 June 2020 the Tribunal was advised that the directorship of the applicant had changed so that Mr Gopal Koli is now the sole director of the applicant company.

12. The matter was listed for hearing on 16 June 2020. A request for a postponement was sought on 13 June 2020 to provide “sufficient information” in relation to the business operation. It was submitted that the matter be listed after 5 August 2020 as proceedings at VCAT were scheduled for that date in relation to the property where the business was conducted. It also submits that the applicant’s director was proposing to take other premises in Benalla to continue the business once the VCAT reinstated proceedings were determined. The Tribunal granted the extension until 25 August 2020. The applicant submitted the VCAT order reinstating the VCAT proceedings dated 22 April 2020 which were reinstated as a result of an allegation by the applicant that settlement terms previously reached were breached and that the matter was not to be listed until 5 August 2020. The applicant also submitted an email from the applicant’s director to their migration agent regarding an inspection of premises in Benalla with a real estate agent which was listed for sale. An open, unsigned letter dated 5/5/20 was also attached from DT Chartered Accountants providing the applicant’s Financial Statements and Quarter end Projection Reports for FYE 2019 & 2020. It states that the projections were based on projected amounts supplied by the applicant and based on FY-2018 and was prepared on the basis that the business operates under normal conditions. The projections suggest that sales and salaries are as follows:

    Sales - Sept-18     Dec-18     Mar-19      Jun-19      Sep-19     Dec-19     Mar-20     Jun-20        

    $108231    $73434.03  $80,777     $83,654     $76,293    $102,231 $90,384   $84,752

    Wages- Sept-18    Dec-18     Mar-19     Jun-19     Sept-19    Dec-19   Mar-20    Jun-20

    $44388     $18842     $20726.20 $26952    $19801     $36,890  $32890   $29,880

    Profit-  $13034  $20164.04 $23524.51 $13198.35 $22429.71 $11376.64 $8453.55 $9640.95

    The unsigned financial statements claim:

    2020  2019

    Income   $353,660.80  $346,096.46

    Wages  $118,959  $110,908.20

    Rent  $42,404.70  $41,908

    Net profit  $30,627  $44,718.29

13. The reliability of these projections cannot be assessed by the Tribunal as evidence of the true position of the applicant financially as the applicant’s business is currently not operating.

14. The applicant again requested a postponement of 8-12 weeks on 11 August 2020 as the VCAT hearing was yet to take place. On this occasion the Tribunal refused to grant the postponement on the basis that the Tribunal cannot indefinitely postpone the review application based on an application in another Tribunal. Further, in the event that the applicant was successful in those proceedings the issue as to whether the applicant is actively operating would not be resolved.

15. On 13 August 2020 the director for the applicant forwarded the following documents to the Tribunal:

    ·Statutory declaration of Gurpartap Singh declared 12 August 2020, stating that he was employed as a cook/chef for the applicant in Ararat, that Purnima Koli is the sole owner and director of the applicant and that her husband Gopal Koli was helping her for health reasons and that he did not engage in conduct in contravention of s.245AR(1).

    ·Unprocessed through the Australian Taxation portal financial statements of the  applicant for the year ending 30/6/19, claiming income for 2019 as $191,492.99 and for 2018 as $249,846.22 and wages for 2019 as $64,495 and for 2018 as $95,956;

    ·ASIC extract of the applicant showing Gopal Koli as director since 26 May 2020;

    ·Text messages screen shot;

    ·Further copy of self-generated list of properties;

    ·Email to director of applicant from Rosendorff Lawyers re VCAT hearing dates;

    ·ASIC extract as at 26 May 2020;

    ·ASIC extract showing that applicant is a registered company as at 11 August 2020;

    ·VCAT points of claim;

    ·Statutory declaration of the applicant’s director Gopal Koli declared on 11 August 2020 confirming that the applicant ceased trading on 21 May 2019 and that all discussion re alternative premises collapsed due to COVID-19 and states “I am committed to continue to operate a motel business once the shutdown restriction is lifted and when I find a suitable premises to run the business.” It is alleged that the business has not suffered any net loss at any time whilst Trading and from the financial reports can employ a hotel manager “when the business is trading”;

    ·Bundle of photos.

16. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant raised no concerns in proceeding by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

17. Mr Gopal Koli appeared as sole director for the applicant before the Tribunal by telephone on 25 August 2020 and gave evidence and presented arguments.

18. The applicant was represented in relation to the review by its registered migration agent who did not appear at the hearing. No reason for the agent’s non-attendance was given to the Tribunal.

19. Mr Koli stated that he believed that the nominee had responded to an advertisement in 2016 which may have appeared in a local newspaper, the applicant’s website or as a result of advertisements placed on GUMTREE or INDEED. The Tribunal pointed out that the employment contract was dated 4 days prior to the advertisements provided to the Tribunal. Mr Gopal states that he will provide the advertisements made prior to the nominee’s application and details of the other alleged 18 applicants, their applications and reasons for them being refused. Mr Gopal recalled that they did not have hotel experience. The Tribunal asked what qualifications the nominee had and Mr Koli stated that he would need to check his records.

20. The Tribunal asked about the document entitled market testing and Mr Koli advised that the accountants had prepared the document on the applicant’s behalf. The Tribunal asked why the information as to employees in the application to the department differed from that in the market testing document including the organizational chart. Mr Koli stated that he would check his documents.

1. The Tribunal asked what the status of the business was and whether the nominee was working for the applicant currently. Mr Koli stated that due to the dispute with the landlord of the business’ premises the business ended operation in May 2019 and the nominee has not worked for the applicant since that time. He further stated that due to the impact of COVID-19 he has been frustrated in sourcing suitable alternative premises but stated that there were 2 possibilities in Benalla and Bendigo. He stated that the VCAT proceedings had been reinstated as he has not been able to claim the applicant’s goods which are at the Ararat premises as was agreed to occur on 31 January 2020.

2. The Tribunal asked if the applicant was able to produce consistent and accurate financial evidence other than the prospective documents prepared by the applicant’s accountants and the already submitted unprossessed tax returns and financial statements . Mr Koli stated that he would like the opportunity to submit such documents together with PAYG documents for the nominee.

3. Mr Koli clarified the statement in the declaration of Mr Singh declared on 12 August 2020 in which he incorrectly states that Mrs Koli is the current owner and director of the applicant as a statement referring to the time when the business was operating.

4. Mr Koli advised that he will also send to the Tribunal a description of the tasks of the nominee by reference to the tasks listed by ANZSCO for a Hotel Manager.

5. Mr Koli stated that he wished to pursue the nomination for the nominee as she is part of a team that has worked together and will do so again when the applicant secures new premises.

6. The Tribunal allowed the applicant until 30 September 2020 in which to provide any further material in support of the application that it wished the Tribunal to consider.

7. On 1 October 2020 the agent for the applicant made further submissions and provided further documents. The submission is dated 23 September 2020 stating that the nominee applied for the role in response to a Jobactive advertisement posted on 15 June 2016 and was selected as the most suitable candidate. The submission asserts that  “the relevant assessment is whether the business has the capacity to meets its obligations in regard to the nominee’s employment based on future projection of the financial viability of the business in an environment that is subject to change”. It further claims that the applicant is searching for new premises, a process which was halted due to the onset of COVID-19. It confirms that the nominee was employed on a fulltime basis from April2017 to May 2019 when the business was forced to close due to a dispute with the landlord of the applicant’s rented premises. It is further submitted that the Tribunal provide more time after 19 October 2020 when the COVID-19 restrctions should ease to enable the applicant to secure new premises and recommence operations. The submission attached the following documents:

   ·Applicants tax returns for 2015-2016 showing income as 0, for 2016-2017 showing income as $43483 and all other expenses as $16230, for 2017-2018 showing income as $249,846 and all other expenses as $145567, for 2019-2019 showing income as $191493 and all other expenses as $118058 and for 2019-2020 showing income as 0;

   ·Bundle of ATO notices of assessment for the nominee;

   ·Diploma of management for the nominee;

   ·Diploma of accounting for the nominee;

   ·Bachelor of accounting for the nominee;

   ·Certificate III OF THE NOMINEE;

   ·Organisational chart for the applicant;

   ·Self-generated interview process notes;

   ·Jobactive advertisement and responses;

   ·Statutory declaration of Gopal Koli declared 29 September 2020 confirming that the applicant’s business ceased on 21 May 2020 alleging as a result of the improper conduct of the landlord and expresses his hope to secure new premises after the COVID-19 lockdown;

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

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

11. It is apparent from the material before the Tribunal and the evidence of Mr Koli that the applicant is not actively nor directly operating a business in Australia. This is further confirmed by the most recent tax return which shows that the applicant has made no income for the period from 2019-2020. The applicant may well be a current legal entity, however, that alone does not meet the criteria in r.5.19(4)(b)(i).

12. The applicant has requested an indulgence in terms of a postponement request of the Tribunal’s decision so as to secure new premises to recommence the business. The Tribunal cannot defer its decision indefinitely. The reason for not securing premises thereafter is limited to legal proceedings at VCAT with the landlord and the onset of COVID-19. The Tribunal notes that the applicant’s business ceased to operate in May 2019 well before the onset of COVID-19 and the business did not recommence operating prior to March 2020 when the effects of COVID-19 precluded the effective sourcing of other premises.

13. Whilst the end of the business may not be the fault of the applicant there is no evidence before the Tribunal that it is actively operating. The Tribunal cannot speculate as to the future of the business.

14. Accordingly, the requirement in r.5.19(4)(b)(i) is not met.

15. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision under review to refuse the nomination.

    Danielle Galvin
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

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

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

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

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

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

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

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

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

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

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

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

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

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).