Jaad Holdings Pty Ltd (Migration)

[2019] AATA 6332

Jaad Holdings Pty Ltd (Migration) [2019] AATA 6332 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jaad Holdings Pty Ltd

CASE NUMBER:  1710738

DIBP REFERENCE(S):  BCC2016/3652575

MEMBER:Nicola Findson

DATE:21 October 2019

PLACE OF DECISION:  Perth

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

Statement made on 21 October 2019 at 12:44pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – regional Australia – genuine need for position – information submitted to department by agent incorrect and incomplete – evidence about business and position provided to tribunal by employer and worker – position unable to be filled by Australian citizen or permanent resident – tasks of position compared with ANZSCO classification – advice from Regional Certifying Body – unfavourable advice not determinative – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 359(2)

Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (h)(ii)(B), (F)

CASE

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 1 May 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).

2. The applicant applied for approval on 2 November 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 applicant company operates a chain of retail whole food and wellbeing stores in Western Australia.  The applicant has nominated a position of Secretary (General) for approval.

5. According to ANZSCO, a Secretary (General) (ANZSCO 521211), performs secretarial. Clerical and other administrative tasks in support of Managers and Professionals.  It is an ANZSCO skill level 3 occupation.

6. Indicative tasks, according to ANZSCO are:

   oliaising with other staff to arrange meetings, and to gain and provide information

   opreparing reports, briefing notes and correspondence, and proofreading work for typographical and grammatical errors

   omaintaining appointment diaries and making travel arrangements

   oprocessing incoming and outgoing mail, filing correspondence and maintaining records

   oanswering telephone calls, responding to inquiries and redirecting callers

   otaking and transcribing dictation of letters and other documents

   ogreeting visitors, ascertaining nature of business and directing visitors to appropriate persons

   omay implement management decisions and maintain records of meetings

   omay handle bookkeeping and petty cash functions

7. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the application for approval did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

8. The review application, lodged on 19 May 2017, was signed by Mr Fadi Dorkhom, Director of the applicant, and included a copy of the primary decision record for the purpose of the review.  The applicant also provided the Tribunal with documentary evidence relevant to the nomination application. A submission accompanying this evidence, among other things, indicated that the applicant had provided relevant information in support of its application to its migration agent, iVisas, however it appeared that the information submitted to the Department by iVisas was “incorrect and incomplete”.

9. On 29 January 2019, the Tribunal wrote to the applicant and invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Migration Act 1958 (the Act). Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(4), including but not limited to the particular criteria that the Department had found were not met. On 13 February 2019, the applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:

   ·     Activity Statements in respect of JAAD Holdings Pty Ltd from the ATO Business Portal for the period October 2015 – June 2017 recording sales in each quarter of between $210,300 – $378,800.

   ·     Financial Statements of the applicant for years ended June 2017 and 2018

   ·     ASIC records confirming the applicant’s company registration and the ABN record.

   ·     A letter of support dated 25 October 2016 from the applicant’s accountant who has formed the opinion based on the information before him (including the historical financial status of the business and its future trading projections) that the company has the financial capacity to meet its obligations in relation to the nominee’s position for at least two years.

   ·     Current organisational structure chart

   ·     Job description for the nominated position

   ·     Contract of employment dated 25 October 2016 between the applicant and the nominee recording that the base salary will be $58,500 and 9.5% superannuation

   ·     Bundle of emails from the Director as well as third parties to the nominee in respect of tasks to be performed for the business.

10. In a further written submission Mr Dorkhom also sets out an explanation of why the business requires the nominated position and its unsuccessful attempts to fill the role from within the local labour market.

11. On 20 May 2018 and 23 September 2019, Mr Dorkhom appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Helin Konsa.

12. 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

13. 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.

14. At the hearing, Mr Dorkhom provided some background to the operation of the company.  He told the Tribunal it was established in 2010 and currently operates as an administrative and management structure, supporting a chain of retail whole food and wellbeing stores (selling vitamin supplements and super foods) -  My Health Market – located across three sites in Cottesloe, Midland, and Southlands, as well as an online store. Mr Dorkhom indicated that as a Director of the applicant, having overall responsibility for his varied health business interests is a significant job.  He indicated that while there are managers for each retail site who tend to oversee their retail staff, he oversees the work of the managers, such as purchasing for the business, as well as property matters.   

15. Mr Dorkhom gave evidence of the nominated employee’s role and duties as a Secretary.  He described how the nominee’s position is crucial to the applicant’s business operations. He indicated the role involves liaising with other staff on matters relating to the organisation’s operations on his behalf.  He indicated that the nominee is responsible for, among other things, preparing and managing correspondence, reports and other routine documents.  He gave the example of requiring assistance with stock control across the three sites and also described analysis relating to purchasing to save the business money.  He told the Tribunal that the nominee handles bookkeeping and financials (including petty cash); the administration of the stores’ integrated database; and training and company health promotion activities.  He said that the nominee maintains files and documents, arranges his meetings and travel, and assists him by generally providing clerical and administrative support in managing the retail sites.  He told the Tribunal that he would have huge difficulty finding a suitable replacement for the nominated employee if she were to leave.  Ms Konsa also outlined to the Tribunal her daily tasks and relevant experience. 

16. Mr Dorkhom explained how the nominee came to be in the applicant’s employ.  He said the nominee responded to an advertisement to carry out stocktake work, and was initially engaged by the applicant on this basis, before commencing in the role of Secretary.  He said that he took the nominated position to the market and interviewed five applicants.  He said the nominee was the only person who had the appropriate skill set, expectations of the role, and relevant experience.  He indicated he had never sponsored a foreign citizen before and would not have gone through the nomination process, as a small business, if he was able to find an Australian citizen suitable for the position.  The nominee has now worked for the applicant, in a full-time capacity, for about five years.

17. The Tribunal was told that the business premises have changed since the application was lodged.  He said that the applicant no longer operates out of Canningvale, WA.  It is now based in Midland, WA, 6056. 

18. Mr Dorkhom indicated he understood the reason for the refusal of the nomination application and explained that, regrettably, as a result of poor migration assistance, the Department was provided with a nomination application containing inaccurate and incomplete information.  He also indicated to the Tribunal that because the previous migration agent did not apply for  regional certifying body certification before the Western Australian government temporarily ceased processing these applications, the applicant was unable to provide this required advice in support of its application. He told the Tribunal that the previous agent had refunded the fees paid by the applicant in full, in acknowledgment that she had done a poor job in respect of the application.

19. The Tribunal observes that at hearing, it found both Mr Dorkhom and Ms Konsa to be  reliable and persuasive witnesses.  The Tribunal is confident to rely on the description of the business and the position provided to it by Mr Dorkhom, and his intentions for the position. 

    The application is compliant: r.5.19(4)(a)

20. 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.

21. The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met.  The application for approval was made on the approved form and was accompanied by the prescribed fee.  The relevant s.245AR(1) certification was also provided in the application form.

22. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal had regard to the evidence before it, including the further documents provided by the applicant after lodging its application for review.

23. The applicant is a proprietary company registered since November 2010.  The organisational chart demonstrates Mr Dorkhom as the Director of the company. 

24. The Tribunal notes that the delegate was not satisfied that r.5.19(a)(ii) was met because it found that the applicant had not identified a genuine need for the position of Secretary in its business. In the Tribunal’s view, r.5.19(4)(a) simply requires that the applicant has identified a position in the application form. The Tribunal will consider the genuineness of the position below, in its discussion of r.5.19(4)(h).

25. Accordingly, the Tribunal finds 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)

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

27. Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

28. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

29. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator.

30. There is no evidence before the Tribunal to indicate that the applicant’s business is involved in labour hire.  The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.

31. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

32. 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.

33. The applicant has provided additional information and updated financial reports to the Tribunal that indicate the company does have the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence. 

34. It is now well over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position.  The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract signed by the parties on 25 October 2016.  The contract indicates that the nominee will be employed as a Secretary on a full time basis for at least two years with a base salary of $58,500 plus superannuation.  There is nothing in the contract that expressly excludes the possibility of extending the employment period. 

35. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

36. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

37. 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.

38. The Tribunal has had regard to the terms and conditions of employment as set out in the employment contract.  The contract provides for the nominee’s entitlements and indicates that the base salary will be $58,500 plus superannuation, for a 38-hour week.  The Tribunal has considered payscale.com.au information indicating that the salary for a Secretary ranges from $39,256 to $67,833. The Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the terms of employment, and that the employment contract reflects current employment laws.

39. On the basis of the information before it, the Tribunal is satisfied that the base salary of the nominee is within the appropriate range of that normally paid to an experienced Secretary working in regional Western Australia. The Tribunal is accordingly satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

40. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

41. 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. 

42. There is no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

43. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

44. 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.

45. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

46. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

47. 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:

    ·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 IMMI 15/091, and certain specified training benchmarks will be met - r.5.19(4)(h)(i); or

    ·the position in the 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 at the ANZSCO skill level 1, 2 or 3, and that a Regional Certifying Body has advised the Minister about certain matters relating to the position - r.5.19(4)(h)(ii).

48. There is no suggestion or submission that the tasks correspond to the tasks of an occupation specified in the relevant instrument under r.5.19(4)(h)(i). Therefore, the Tribunal has considered relevantly, whether all of the following apply under r.5.19(4)(h)(ii):

    ·the position and business is located in ‘regional Australia’;

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

    ·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;

    ·the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3;

    ·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

    Location of the position and the business

49. The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.

1. The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1].  The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].

   [1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states:  “(1)  This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”

   [2] See Schedule 4 of IMMI 18/037

2. When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated.  The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.

3. Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application.  That legislative instrument is IMMI 16/045.

4. In this case, at the time the applicant lodged the application, the position was located in Canningvale, Western Australia, 6151.  (It is now located in Midland, Western Australia, 6056.) The location / postcode of Canningvale (as well as Midland), at the time of application, were considered regional Australia, as per Schedule B of IMMI 16/045.  Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.

   Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident

5. Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.

6. In considering this issue, the Tribunal has taken into account the information provided to the Tribunal (which was significantly more information than was available to the delegate) regarding the nature of the business and the explanation as to why there is a genuine need for a Secretary in the business.  In particular, it takes into account the business operations of the applicant.  The Tribunal accepts that the applicant genuinely requires assistance with a position performing tasks corresponding to those of a Secretary.  

7. As to whether the position cannot be filled by a locally resident Australian citizen or permanent resident, the Tribunal accepts the evidence before it regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the role was advertised, and other candidates were interviewed and deemed unsuitable before the nominee was offered the position.

8. The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C ) are met.

   Tasks of the position

9. The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument. 

10. The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Secretary (General) specified in the relevant instrument.  The applicable instrument specified for this purpose is IMMI 15/083. 

11. Having carefully listened to the nature of the applicant’s business and the needs of its Director, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Secretary (General), such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Secretary (General) at ANZSCO Skill Level 3.

12. The Tribunal notes in passing that the nominee now has almost five years’ experience working as a Secretary for the applicant.

13. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.

    Regional Certification

14. The delegate’s decision records that the applicant did not provide an approved Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, to support their application. 

15. Mr Dorkhom told the Tribunal, and the Tribunal accepts, that his previous migration agent did not apply for a Regional Certifying Body certification before the Western Australian government temporarily ceased processing these applications in anticipation of changes to the Regional Sponsored Migration Scheme postcodes.  Instead, the applicant’s previous migration agent requested the delegate to deem the Regional Certifying Body criterion as being met, and provided evidence that would have otherwise attached to a Regional Certifying Body application.

16. During the review process, when this requirement was identified as being an issue, the applicant sought to obtain the required Regional Certifying Body advice by submitting a new Regional Certifying Body application.  On 28 June 2019, the Western Australian Department of Training and Workforce Development issued a Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice.  This Regional Certifying Body advice was provided to the Tribunal, and the Tribunal has considered it. The Regional Certifying Body indicates that it is unable to provide positive certification advice about: whether the identified person would be paid at least the annual market salary rate for the occupation; whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator; and whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned, because evidence of at least two advertisements which demonstrate that the position was advertised within three months and no less than two weeks directly proceeding the application for assessment by the Regional Certifying Body has not been provided, and additionally, because the location of the nominated position is in the Perth Metropolitan region.

17. The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.

18. The Tribunal observes that r.5.19(4)(h)(ii)(F) does not require Regional Certifying Body approval. It requires only advice by the Regional Certifying Body, about matters mentioned in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations.

19. On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided to it, the Tribunal is satisfied that the Regional Certifying Body has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. Therefore, albeit unfavourable advice, the requirement in r.5.19(4)(h)(ii)(F) has been met.

20. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a Regional Certifying Body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.

21. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

22. It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.

23. 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

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

    Nicola Findson
    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).