IRS & DMGT Pty Ltd (Migration)

IRS & DMGT Pty Ltd (Migration) [2022] AATA 3305 (29 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  IRS & DMGT Pty Ltd
REPRESENTATIVE:  Mr Kyu Man Hwang (MARN: 0530812)
CASE NUMBER:  1921014
HOME AFFAIRS REFERENCE(S):          BCC2018/5193897
MEMBER:Warren Stooke AM
DATE:29 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 29 September 2022 at 11:53am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – software engineer – genuine need for position, financial capacity to employ nominee and tasks of position – no response to tribunal’s invitation to provide current information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A,
Migration Regulations 1994 (Cth), rr 2.72(15), 5.19(3)(b), (4)(a), (d), (f), (9)(a), (c), (d), (g), (j), (10), (12)
CASE
Hasran v MIAC [2010] FCAFC 40

statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 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).
The applicant applied for approval on 21 November 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination of a Software Engineer – ANZSCO Code: 261313, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that the evidence provided adequately demonstrated that there is a genuine need for the nominator to employ the identified person to work in the nominated position under their direct control. Consequently, the delegate did not consider that the nominator meets paragraph 5.19(9)(d) and as a result sub-regulation 5.19(9) is not met. Consequently, paragraph 5.19(4)(f) is not met and the nominator does not meet sub-regulation 5.19(4).
On 17 August 2022 the Tribunal corresponded with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position with a response required by 31 August 2022. As at the date of decision, the applicant has not provided the information sought by the Tribunal.
The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Further, in the absence of contemporary information concerning the operation of the business, the Tribunal is not in a position to adequately assess the nominee’s role, as a Software Engineer – ANZSCO Code: 261313 in the context of the overall business operation and how the position interacts with the Owner/Director, and other employee positions in the business and whether there is a genuine need for the position. The applicant provided evidence to the Department of an organisation chart that has three directors and two employees, including the nominee with the nominee reporting to an Owner/Director, however, the applicant has not provided the Tribunal with any end of financial year certified accounts or Taxation Returns to substantiate the capacity to employ the nominee, other than an uncertified schedule of accounts for 30 June 2017 that do not provide reliable evidence to cover a future employment capacity. Similarly, one BAS return was submitted prior to application, which does not provide the necessary financial data to effectively assess the business, in the absence of adequate contemporary information.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
The applicant provided the Department with a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1). This document was dated 21 November 2018.
Whilst the applicant provided the Department with a stated position that contended a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, in the absence of a response to the request for further contemporary information, addressed in the Tribunal correspondence of 17 August 2022, the Tribunal is not satisfied that the applicant has provided sufficient evidence to support the need for the position of Software Engineer – ANZSCO Code: 261313 under the direct control of the business owner.
Further, the applicant provided a schedule of duties pertaining to the position of Software Engineer– ANZSCO Code: 261313, as follows:
·Meeting & consulting with clients to discuss their desires for a website;
·Discuss how to keep client’s website functioning and up to date;
·Construct the layout of a website, creating visually interesting home page and user-friendly design;
·Write the content for the website;
·Construct technical specifications from a business functional model, and tests and writes technical documentation;
·Oversee the site is functional on all web browsers;
·Ensuring testing and updating it as needed;
·Might include interactive capabilities on site using Visual Basic or Java programming languages.
In the absence of contemporary information concerning the operation of the business, the Tribunal is not in a position to adequately assess the nominee’s role in the context of the overall business operation and how the position interacts with the owner and other consultant/employee positions. As such, the Tribunal does not have sufficient evidence, beyond a basic organisation chart, to establish whether the business actually has a genuine need for the position, as the submitted accounts for 30 June 2017 identify that the total wage and salary payments to be $38,300 and the business has an overall profit of $9,188, which suggests the business does not have the financial capacity to employ the nominee as a full-time Software Engineer on a salary of $71,000.
In addition, the applicant has not provided an end of financial year, ATO taxation return information, to the Department or the Tribunal for any financial year, prior to or subsequent to application, except for the non-certified financial accounts for the financial year ending 30 June 2017, where the information provided was that the business made a profit of $9,188. As such, the Tribunal is not in a position to adequately assess the financial capacity of the business to support the employment of the nominee for at least 2 years, including whether the nominee is currently employed, given that the contract notionally commences subject to the grant of the nominee’s visa.
Accordingly, the requirement in r.5.19(4)(a) is not met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
The applicant provided the Department with an unsigned and undated copy of a contract of employment, for the nominee that commenced subject to the grant of the visa to the nominee. The contract provided a salary of $71,000, plus superannuation and the contract was to be in place for 3 years. As such, the contract has not been operative and there is no evidence that the nominee is actually employed in the nominated position, despite a claimed business need for the position.
The applicant has not provided the Tribunal with evidence that the nominee has been provided with a Fair Work Information Statement at the time of employment. As such, the Tribunal is not satisfied that the applicant has complied with their legislative obligations.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is not met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant has not provided the Tribunal with evidence that the nominee has been provided with a Fair Work Information Statement at the time of employment. As such, the Tribunal is satisfied that the applicant has not complied with this legislative obligation.
The applicant has not provided an end of financial year, ATO taxation return information, to the Department or the Tribunal for any financial year, that would identify that the business was operating actively and lawfully in Australia.
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
In the absence of a response to the Tribunal’s correspondence of 17 August 2022, the Tribunal does not have sufficient information to categorically find that the business is actively and lawfully operating the business in accordance with Regulation 5.19(9)(a). In this regard, the Tribunal required the provision of the following information:
“1. Information about the identity of any person authorised to speak and make
decisions on behalf of the applicant;
§If the applicant is a company or registered business, an ASIC
company or business name extract ( If the applicant is a company or registered business, current and historical
information about its owners or office holders’ registration details;
§An ASIC current and historical extract ( Information about the applicant directly operating an active and lawful business
in Australia, including its financial circumstances;
§The applicant’s lodged tax returns for the last two full financial years,
business activity statements that have been lodged with the ATO for
the last 24 months and financial statements prepared in accordance
with Australian accounting standards, including profit and loss
statements and balance sheets, for the most recent two financial
years.
4. Information about the applicant’s current organisational structure and where the
nominated position sits in relation to that structure;
§An organisational structure chart that includes all of the applicant’s
current and proposed employees, their position title/duties and their
immigration status (ie. Australian citizen, permanent resident or
temporary visa holder).
5. Information about the roles and duties of the nominated position and how they
correspond to the nominated occupation’s position description in ANZSCO;
§Job descriptions, work samples, emails, correspondence and other
examples of the daily tasks performed in the nominated position, and
also the nominated occupation’s position description in ANZSCO (go
to and type the
nominated occupation’s 6 digit ANZSCO code number into the
‘Search’ function).
6. If the position requires a licence or registration of a particular kind, or
membership of a particular professional body, information about whether or not
the nominee holds that licence, registration or membership;
§a copy of a valid and current licence, registration or professional
body membership held by the nominee.
7. Information about the terms and conditions of employment in the nominated
position, including whether they are more or less favourable than those provided
for an Australian citizen or permanent residence performing equivalent work in
the same workplace at the same location, and whether the nominee will be
employed on a full time basis for at least 2 years with terms and conditions not
expressly excluding the possibility of extension;
§A current employment contract in respect of the nominee or letter of
engagement that complies with relevant awards for the nominated
position (if any).
8. If the nominated position is not located in regional Australia and the applicant
has paid the non-regional position application fee, information about:
a. the need to employ the nominee in the nominated position; AND
b. the applicant’s business operating for:
i. at least 12 months - its recent training expenditure; OR
ii. less than 12 months - its plan for future training expenditure
§Invoices or contracts for employee training, a training program that
includes a course outline, attendance and identifies increased work
competencies, or records of investment in certain industry training
funds or recognised industry bodies.
9. If the nominated position is located in regional Australia, information about:
a. the need to employ the nominee in the nominated position and why the
position cannot be filled by an Australian citizen or permanent resident
living in the same local area; AND
b. whether a specified Regional Certifying Body located in the same State or
Territory as the nominated position has provided advice that:
i. the terms and conditions of employment are no less favourable than
those provided to Australian citizens or permanent residents
performing equivalent work in the same workplace; AND
ii. there is a genuine need to employ the nominated person as a paid
employee to work in the nominated position under the applicant’s
direct control; AND
iii. the position cannot be filled by an Australian citizen or permanent
resident living in the same area;
§Local job advertisements for the nominated position that were not
successfully filled, and the Regional Certifying Body’s certificate
issued to the applicant in respect of this position.
10. Information about whether the applicant has been subject to monitoring by the
Department and, if relevant, the outcome of the monitoring audit;
11. Information about whether the applicant has been the subject of any
investigation about a possible contravention of the law.”
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(a) is met. Accordingly, reg 5.19(4)(f) is not met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The applicant provided the Department with an unsigned and undated contract that included a schedule of duties for the applicant, but will only commence upon the grant of the nominee’s visa. In this regard, the applicant has provided non-certified accounts for the financial year ending 30 June 2017, where a total payment of wages for the business is $38,300 for two notionally employed employees (including the nominee), which suggests that the nominee is not employed full-time, given the contracted salary of $71,000. As such, the Tribunal is not satisfied that there is a genuine need for the position of Software Engineer – ANZSCO Code: 261313, particularly as the net profit of the business, without incurring the salary of the nominee of $71,000, is $9188. The Tribunal is satisfied, in the absence of a response to the information sought by the Tribunal in the correspondence of 17 August 2022, that the business does not have the financial capacity to employ the nominee for at least 2 years on a salary of $71,000.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(d) is met. Accordingly, reg 5.19(4)(f) is not met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The applicant provided the Department with an unsigned and undated contract that included a schedule of duties for the applicant, but will only commence upon the grant of the nominee’s visa. In this regard, the applicant has provided non-certified accounts for the financial year ending 30 June 2017, where a total payment of wages for the business is $38,300 for two notionally employed employees (including the nominee), which suggests that the nominee is not employed full-time, given the contracted salary of $71,000. As such, the Tribunal is not satisfied that there is a genuine need for the position of Software Engineer – ANZSCO Code: 261313, particularly as the net profit of the business, without incurring the salary of the nominee of $71,000 is $9188. The Tribunal is satisfied, in the absence of a response to the information sought by the Tribunal in the correspondence of 17 August 2022, that the business does not have the financial capacity to employ the nominee for at least 2 years on a salary of $71,000.

Given the above findings, the Tribunal is not satisfied reg 5.19(9)(g) is met. Accordingly, reg 5.19(4)(f) is not met.
Annual earnings – reg 5.19(9)(h)
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·     the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument 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), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·     the nominee’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): reg 2.72(15)(e) and reg 2.72(16)(aa);
·     the nominee’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: reg 2.72(15)(f) and reg 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).
The Tribunal notes that the base rate of pay for the Australian equivalent employment must be greater than the TSMITamount specified in the instrument of $53,900. As the applicant has not provided any information concerning the earnings of the nominee, the Tribunal is satisfied that the wage and earnings cannot be properly reviewed, however, the unsigned and undated contracted salary of the nominee has been set at $71,000, which suggests theTSMIT amount specified in the instrument of $53,900 has been met, if the nominee has been employed and correctly remunerated.
In the absence of specific information pertaining to the paid remuneration of the nominee, the Tribunal is satisfied that reg 2.72(15) has not been met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 186 visa.
Regulation 5.19(10) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument.
The applicant provided information in the unsigned and undated contract of employment that the following duties will be undertaken in the nominated position from the grant of a 186 visa:
·Meeting & consulting with clients to discuss their desires for a website;
·Discuss how to keep client’s website functioning and up to date;
·Construct the layout of a website, creating visually interesting home page and user-friendly design;
·Write the content for the website;
·Construct technical specifications from a business functional model, and tests and writes technical documentation;
·Oversee the site is functional on all web browsers;
·Ensuring testing and updating it as needed;
·Might include interactive capabilities on site using Visual Basic or Java programming languages.
The Tribunal notes that the ANZSCO Code: 261313 for a Software Engineer includes the following tasks:
·    researching, consulting, analysing and evaluating system program needs
·    identifying technology limitations and deficiencies in existing systems and associated processes, procedures and methods
·    testing, debugging, diagnosing and correcting errors and faults in an applications programming language within established testing protocols, guidelines and quality standards to ensure programs and applications perform to specification
·    writing and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards
·    writing, updating and maintaining technical program, end user documentation and operational procedures
·    providing advice, guidance and expertise in developing proposals and strategies for software design activities such as financial evaluation and costings for recommending software purchases and upgrades
The Tribunal finds that the position description provided by the applicant is predominately related to website design, functioning, content, testing and maybe limited language application. As such, the Tribunal is not satisfied that the applicant has sufficiently addressed the duties required to comply with the descriptor for a Software Engineer – ANZSCO Code: 261313, as prescribed.
Given the above findings, the Tribunal is not satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) and reg 5.19(4)(f) are not met.
Whilst the applicant provided information to the Department that the position was advertised in Job active and Career One, the applicant has not provided any information relating to the number of applicants, the interview and selection process and the appointment of the nominee. As such, the Tribunal is not satisfied that the applicant has met the criteria required to meet reg 5.19(12) is met.
Given the above findings, the Tribunal is not satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) and reg 5.19(4)(f) are not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
decision
The Tribunal affirms the decision under review to refuse the nomination.
Warren Stooke AM
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.

[2022] AATA 3305

29 September 2022

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