Grill'd Pty Ltd (Migration)

Grill'd Pty Ltd (Migration) [2019] AATA 6355 (26 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Grill'd Pty Ltd
CASE NUMBER:  1800269
DIBP REFERENCE(S):  BCC2016/3203819
MEMBER:Mark Bishop
DATE:26 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 November 2019 at 4:33pm
CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Fast Food Manager – tasks of position align with relevant ANZSCO code – genuine need for position under nominator’s direct control – evidence of recruitment activity provided – no Australian citizen or Australian Permanent Resident available for position – nomination approved – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 December 2017 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).
The applicant applied for approval on 27 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The applicant and the nominee appeared before the Tribunal on 26 November 2019 to give evidence and make submissions.
The MA for the applicant also made submissions to the Tribunal. Mr Damian Bevilacqua Head of HR Services Grill’d Pty Ltd and Mr Mason Phillips former regional General Manager (RGM) (now head of Trade operations for Grill’d Pty Ltd) also gave evidence.
The applicant provided a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review by its registered migration agent.
At the outset of the hearing the Tribunal advised it did not have a copy of the Grill’d franchise agreement and the review hearing was to be confined to the position of Restaurant Manager at company stores and in particular the company store located in Cockburn in WA.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the 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.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The applicant lodged the following material:
·An online form, RA certified it had not engaged in conduct that contrives subsection 245AR(1) of the Migration Act 1958 and fee paid;
·Material that Identified a need for the nominator to employ an identified person as a paid employee to work in the position under the nominators direct control (DF)
·As the nominated position is in regional Australia, no application fee is payable pursuant to regulation 5.37 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
·The job title of the nominated position is Restaurant Manager, and the related occupation is Retail Manager (ANZSCO 142111) with the specialisation of Fast Food Manager as described in the ANZSCO specialisation for the occupation.
·The nominee has been identified as Miss Grace Michele Roberts and the nomination relates to a subclass 187 - Regional Sponsored Migration Scheme visa in the Direct Entry Stream.
Accordingly the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
The nominator is actively and lawfully operating a business according to ASIC checks and financial records provided to the Tribunal as follows;
·ASIC information (Company Statement and Office Holders, ASIC Company Extract, ASIC Current Extract);
·ABN Lookup and Historical Extract;
·Financial Accounts for Grill’d Pty Ltd;
·Grill’d Pty Ltd operates 139 restaurants Australia wide, and owns 108 of them including the nominee’s place of employment at the Cockburn Grill’d in Western Australia, just south of Fremantle (the remainder are franchises). Consequently, Grill’d Pty Ltd directly operates the restaurant business in which the nominee will be employed.
Accordingly the requirement in r.5.19(4)(b) is met.
5.19(4)(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses
5.19(4)(c) applies to a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator. There is no evidence before the Tribunal that the business activities of the applicant include labour hire
Accordingly the requirement in r.5.19(4)(c) is met.
5.19(4)(d) future employment of nominee - will be employed for at least two years with a no exclusion of extension
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The applicant provided information that showed the nominee will be employed for at least two years with no exclusion of extension
The nominator provided copies of the following documents: Employment Contract, Award Detail, Enterprise Agreement, Organisation Chart, Position Description and relevant supporting documentation attesting to the fact the nominated position is a genuine position. The nominator provided a written submission whereby he advised the employment offer was full time and the nominee had been employed in the Cockburn outlet as Restaurant Manager since 2016 and the position was ongoing.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. The applicant provided the following information:
The application declares terms and conditions will be equivalent to Australian employees.
The applicant submitted an employment contract to the Tribunal that showed a salary of $73,000 plus superannuation for the nominated position. The nominator also provided a copy of the relevant enterprise agreement that contained a classification of Restaurant Manager.
As there is only one Restaurant Manager position per restaurant, there is no Australian worker performing equivalent work to the nominee in the same workplace, at the same location. The Grill’d Enterprise Agreement 2015 applies to the nominated occupation, and the relevant salary occupation group applies to all Restaurant Manager positions. The Grill’d Enterprise Agreement 2015 provides at cl.17.1(3) that “A Business manager is an Employee appointed by Grill’d to be in charge of a food outlet”. The Grill’d Enterprise Agreement 2015 provides at cl.18.10 and cl.18.11 the minimum starting salary of a full time Business Manager and that it is inclusive of all loadings (hence an annualised salary). Cl.21.1 provides that “During the life of this Agreement, Grill’d will ensure that your hourly rate of pay does not fall below the base rate of pay that would be payable to you under an otherwise applicable modern award.” Consequently, the terms and conditions of the nominee’s employment are no less favourable than the terms and conditions that are and would be provided to an Australian citizen or permanent resident performing equivalent work in a location commensurate with Cockburn.
Accordingly the requirements of r.5.19(4)(e) are met
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
A search conducted on 22 November 2019 showed no obvious adverse information results for Grill’d Pty Ltd, current office holders and directors and previous directors.
There is no adverse information before the Tribunal.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There was no information before the Tribunal that showed past breaches of workplace relations laws. Searches of the FWO website on 22 November 2019 did not reveal any instances of non-compliance relating to Grill’d Pty Ltd. In addition see paragraph 47 below.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
On 27th September 2016, GRILL'D PTY LTD lodged a Regional Employer Nomination (Permanent) (Class RN) under the direct entry stream for the occupation of Retail Manager (General) (ANZSCO 142111). The nomination was lodged in favour of Ms Grace Michele Roberts.
The delegate made a finding GRILL’D PTY LTD is a fast casual dining outlet business trading as ‘Grill’d’. The nominee has been nominated to be employed in an outlet they operate in Cockburn, Western Australia.
The delegate made a finding “the employer (sponsor) has demonstrated they are ultimately responsible for the guidelines on the store’s operations. The employer through its guidelines and systems exerts a very high degree of control and input on operational matters such as product, shop presentation, advertising etc, that might otherwise be the preserve of a retail manager should they be working in an ‘independent’ retail environment”
The delegate outlined “In the provided Position Description under ‘Primary Purpose of Role’ the nominee is required to “Ensuring the restaurant meets Grill’d governance & compliance expectations” and “Executing the Grill’d Way for our systems and processes at all times”. Under ‘Build a high performance culture’ the nominee is required to: “build and set restaurant goals and plans that align to the Grill’d Strategy and Operations dept. plans & align every employee to these goals”.
The delegate made a finding “Whilst acknowledging that some of the duties of the nominated position appear to have supervisory functions and that the nominated position may require the occasional performance of tasks representative of a higher skill level occupation. However, considering the evidence overall, I am of the view that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager, rather they are more closely aligned with those of an ANZSCO Skill Level 4 Retail Supervisors position”.
Grill’d Pty Ltd seeks review of this decision.
The Tribunal notes the nominee has been actively working full-time in the position since 2016 and the position continues to fit squarely within the regular and ongoing activity of the business.
The nominator advised the Tribunal it has a continuous need for Managers and the recruitment of skilled, experienced Managers in every state is a challenge, with Western Australia proving to be their most difficult market to find suitable candidates.
The information accompanying the submission further confirmed on average it takes the business approximately three months to find suitable candidates to manage the individual restaurants. Grill’d’ advised the Tribunal its recruitment processes give weight to the genuine need for the nominee (see attachment 1).
The employer’s representatives gave evidence that the business relies on the nominee (and similar employees employed as Restaurant Managers) because of the sheer size and scope of the business and the many restaurants that it owns. The business could not demonstrate its substantially growing income and profit, without a supervising manager in each restaurant, together with the regional, state management tier demonstrated on the organisational chart contained within the documents. The nominator advised the Tribunal Grill’d is a significant business with 139 restaurants. Each restaurant is a significant business unit in its own right, with revenue of $3.2m at the Cockburn store and part of a broader successful business. The reliance on the restaurant manager is the key of the individual business. The restaurant manger is the driver of success. He/she looks after staff, financial management matters, local marketing and regulatory matters. People at a more subordinate level are charged with supervisory responsibilities. The onus on the Restaurant Manager is to deliver outcomes via her relationships within the business. She has reporting roles. Senior management come to the Restaurant Managers for insights and accountability on all store level operations. It is critical that the Restaurant Manager uphold the store or product brand at all time and this drives individual business entity outputs.
Each Restaurant Manager runs their restaurant autonomously and is responsible for managing staff, recruitment, finances, ordering, and all the other tasks described in the accompanying documents provided to the Tribunal. The Managers have KPIs and budgets to meet, and must also comply with company guidelines and processes, as would be expected in a large organisation with many outlets.
The nominator advised the Tribunal the nominee’s restaurant Cockburn Grill’d is a Premium Casual 100 seat restaurant which has a liquor license for full service of alcohol. The management tasks therefore also include all the management issues surrounding responsible service of alcohol, Occupational Health & Safety, and food safety. A WA restaurant liquor licence as owner has obligations attached to it including that a restaurant manager must be present during the service of alcohol hours (see attached “WA liquor license – restaurant checklist”, at attachment 6).
Cockburn Grill’d’s actual sales for 2019 were $3.2 million making it an extremely busy and profitable restaurant. The nominee is responsible for the management and training of 34 staff, and she reports directly to the Area Manager, who in turn reports to a Regional General Manager, and ultimately the National Operations Manager. This represents a normal organisational structure for a large business operation with many staffed premises.
The nominated position is under the nominator’s direct control, as evidenced by the organisational chart (contained within attachment 1 – last page), and the employment contract.
Material provided to the Department and The Tribunal shows the following:
·Grill’d Pty Ltd is a highly profitable operation with a profit after tax of $6,237,140 and with net assets of $5,206,377 in the FY2018. The nominator provided BAS for 2015/2016.The nominator did provide a set of company accounts for the FY2016. The P & L Statement showed a line entry of “Marketing Expenses of $2,475,484 for the FY 2016 up from $2,385,217 in the FY2015. The nominator otherwise did not provide company accounts or company accounts relating to the Cockburn store.
·The nominee was initially employed as a “Business Retail Manager” under the terms and conditions of the Grill’d Enterprise Agreement 2015 at a salary of $62,000 plus superannuation at the Cockburn store with a commencement date as soon as her nomination was approved by DIPBP. The Grill’d Enterprise Agreement 2015 states that the Fast Food Industry Award 2010 is the relevant award for the purposes of the Better off Overall test under the Fairwork Act.
·As at 26 September 2018 the nominee was employed as a Restaurant Manager with a salary of $73,440 from 1 October 2018;
·Grill’d Pty Ltd provided an organisational chart that showed a hierarchy with five levels of management with team members and trainees (22 persons) reporting to team leaders (5 persons) reporting to Assistant Restaurant Managers (2 persons) reporting to the Restaurant Manager (the nominee) who reported to an Area Manager (Lisa Wilding) who reported to a Regional General Manager – WA (Aimee Edwards) who reported to a National Operations Manager (Jeremy Milner);
·As at December 2018 Grill’d Pty Ltd operated 119 restaurants in all states and territories of Australia excluding Tasmania. Grill’d later updated this figure to 139 restaurants in Australia. The operations structure of each Grill’d restaurant requires 1 Business Managers, 2 Assistant Managers, 5 Team Leaders and 20 Team Members. They planned 12 restaurant openings in 2017 and employed 350 managers. They were unable to find a suitable Restaurant Manager for their store in Cockburn WA;
·Grill’d outlined a position description for “Business Retail Manager” as at May 2015 under the headings of Passion, Leadership, Ownership and Trust. The position description contained many references to “deliver[ing] the Grill’d Experience every single time”, “executing the Grill’d Way” for management, leadership, systems processes at all times, “Build[ing] and Sett[ing] goals and plans that align to the Grill’d Strategy and Operations dept. plans, “…accountability and responsibility to deliver the Grill’d experience consistently…”, “Effectively use systems to capture data and to produce reports to review systems management and progress against key metrics (e.g. impact, Supply'd, dashboard, CRM, GIMP, HUB, Redcat);
·Performance Measures under various headings included Completion of PPR for ARMs, TLs, TMs, Focus Booklet completion, staff competency matrix, online training completion, Restaurant Review, MIVPA, Ultimate Hours compliance and wages, COGS, Supply’d compliance;

On 21 November 2019 Grill’d provided a further comprehensive submission to the Tribunal. It addressed all the elements of r.5.19(4). In particular Grill’d provided detail commentary as to the tasks of the nominated occupation are genuine. It outlined the following:
·Grill’d summarised the reasoning and conclusion of the delegate;
·The delegate did not consider the possible tasks of specialisation within the ANZSCO description of Retail Manager i.e. Fast Food Manager, the size of the business or size or turnover of the restaurant in which the nominee is employed;
·Grill’d outlined the historical of policy around “fast food” as follows:
oIn approximately 2014 the DHA formed the view that Restaurant Manager (ANZSCO 14111) was not an appropriate occupation in restaurants considered to be fast food, fast casual or limited service bars and that Retail Manager was the appropriate occupation to be nominated in such business types. As a result, casual restaurants and premium casual restaurants such as Grill’d were forced to nominate the occupation of Retail Manager for their restaurants, even though the actual positions within their business were called Restaurant Manager.
oThe tasks of the nominee closely align with the general tasks of unit group 1421 Retail Managers with the specific tasks of the occupation of Retail Manager (general) - and by extension the specialisation of Fast Food Manager contained in the Retail Manager descriptions. If a Retail Manager “organises and controls the operation of a retail trading establishment” then it is logical to assume that a Fast Food Manager, as a species of Retail Manager, “organises and controls the operation of a fast food establishment’. The Tribunal accepts this point.
·ANZSCO does not list any specific tasks associated with the occupation of Fast Food Manager, however three Fast Food Manager job descriptions from reputable sources in Australia, the United States, and the United Kingdom accompany the submissions and may assist the Tribunal in its assessment of the tasks of the occupation.
·The job descriptions outline similar sets of tasks, including that a Fast Food Manager must meet budgets and reports to head office, envisaging that Fast Food Managers have tasks and KPIs set by an outside source, a factor that did not sit well with the original decision maker, who appeared to expect that all of the decisions that the nominee were without head office or senior management direction.
·The accompanying job descriptions confirm that there is a slightly different emphasis with respect to Fast Food Manager’s tasks particularly with respect to large chains of restaurants.
·Grill’d included a document (outlined hereunder) entitled “Grill’d Manager Responsibilities” which contains the day-to-day tasks of the nominee. The combined descriptions fit closely with the day-to-day tasks of the nominee, and further confirm that the tasks of the nominee are genuine, and line with the tasks of the specialisation of Fast Food Manager within the Retail Manager descriptors.
In response to a question from the Tribunal the nominator offered the following as the key descriptors of the fast food industry. Classified self as premium casual dining restaurant. The nominator advised Grill’d has elements of a traditional fast food restaurant. However it has specialist crockery and table delivery. It occupies a unique position within the fast food industry. Grill’d advised the key descriptors of the traditional fast food industry as having little to no table service, no alcohol offering, service delivery by juniors and the level of training around quick service. Level of training in Grill’d is around customer service.
In response to a question from the Tribunal the nominator advised the key attributes of its business extends to overall offering of what is Grill’d and this extends to local marketing. Grill’d want to be a local reflection of local communities and provided examples of local offerings and local engagements. It is a key responsibility of a Restaurant Manager to canvass local communities and network local sports groups and other local institutions. The ambience of its restaurant reflected the local environment with music, soft furnishings, and an inter-active local workforce that checked in and checked out customers. There is a strong emphasis around product.
The “Grill’d Manager Responsibilities” document addressed the tasks and responsibilities of Restaurant Managers under a set of descriptors relating to profit and loss, growth of the business, weekly sales, stock management, financial reporting, rostering, recruitment, alcohol licence management, training, food safety OH & S, banking and float management, product mix (inclusive of allergens), the manager role in training, sales, marketing and management meetings
In respect of the tasks and responsibilities addressed in paragraph 52 above the “Grill’d Manager Responsibilities” document addressed 50 particular tasks that feel to be carried out by the Manager.
It is clear from a perusal of the “Grill’d Manager Responsibilities” document the Manager is charged with serious responsibilities that go to management, control, performance, development, achievement, growth and direction of all facets of the store’s business requirements.
It is also clear from the documentation outlined above there is clear corporate or head office engagement (through management and executive positions as outlined in the organisational chart) in the management of the enterprise. This includes each of the 138 Grill’d outlets (exclusive of franchise outlets). That engagement goes to policy, systems, processes, finances, development, growth and the use or deployment of capital.
The Tribunal accepts significant corporate enterprises with hundreds of outlets do need Restaurant Managers to take overall responsibility for the proper management and direction of each outlet. It cannot be rationally accepted that the Restaurant Manager ignores the systems and processes of its large corporate employer, or that the manager’s tasks are reduced to a lower level because of it - particularly in a restaurant with the turnover, capacity and staff numbers that Cockburn has.
The Restaurant Manager at outlet level and executives at corporate level are all managers. The positions are not mutually exclusive. They often carry out similar tasks. They work with the same policies, systems and processes. They are committed to the same outcome. The nominator advised the Tribunal that Restaurant Managers in due course do progress up the corporate chain in an entity like Grill’d. He advised of numerous examples of Restaurant Managers moving through operational streams.
The Tribunal is satisfied the tasks and responsibilities of the Restaurant Manager at Grill’d Cockburn fit squarely within the specialisation of “Fast Food Manager” as it fits within the definition of Retail Manager ANZSCO 142111.
The nominee’s employment is in Cockburn, Western Australia. This is a regional area for the purposes of the Regional Sponsored Migration Scheme. On the basis of submissions provided by the nominator the Tribunal is there is a genuine need for the nominee to work under the direct control in the restaurant in Cockburn, and the recruitment evidence confirms that no Australian citizen or Australian Permanent Resident was available for the position. This was also confirmed by the Regional Certifying Body advising the Minister of its approval of the nomination.
At the outset of the hearing the Tribunal advised it did not have a copy of the Grill’d franchise agreement and the review hearing was to be confined to the position of Restaurant Manager at the company store of Cockburn in WA.
Accordingly he application satisfied the requirements of r.5.19(4)(h)(ii).
Accordingly the requirements of r.5.19(4)(h) are met.
CONCLUDING PARAGRAPHS
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mark Bishop
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).

[2019] AATA 6355

26 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing