Koumi P & Maria K & Pieris K & George K Zacharia (Migration)

Koumi P & Maria K & Pieris K & George K Zacharia (Migration) [2022] AATA 4497 (23 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Koumi P & Maria K & Pieris K & George K Zacharia
REPRESENTATIVE:  Dr Chahal Sukhpal Singh (MARN: 1576992)
CASE NUMBER:  1913956
HOME AFFAIRS REFERENCE(S):          BCC2018/2490840
MEMBER:Joanne Bakas
DATE:23 November 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 November 2022 at 9:59am
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Chef – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359, 360
Migration Regulations 1994, rr 1.13, 2.72, 2.73, 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 Home Affairs on 13 May 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 7 June 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, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(h) of the Regulations because the delegate was not satisfied the nominator demonstrated the requirements set out in subregulation 2.72(15).
The Tribunal received an application for review on 3 June 2019. The applicant was represented in relation to the review by its registered migration agent.
On 17 June 2022, the Tribunal wrote to the applicant, through their representative, the authorised recipient for correspondence. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Act.
Submissions and documents were then provided by the applicant to support the r.5.19 nomination and the Tribunal has given careful consideration to them.
The Tribunal, after considering all the documentary evidence before it, was able to make a positive decision on the papers. The applicant had previously been invited to attend a hearing. The hearing was cancelled and the applicant was informed.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
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.
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).
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
On the basis of information in the Department’s file, the Tribunal is satisfied that the application:
·was made in accordance with the approved form 1395 (Internet);
·identified the position of Chef (ANZSCO 3511311);
·identified Mr Kit Jolyon Peter Smith (the nominee) as the person in relation to the position;
·identified the occupation of Chef in relation to the position;
·identified the Subclass 187 (Regional Sponsored Migration Scheme) visa and Direct Entry stream to which the nomination, dated 7 June 2018, relates;
·was accompanied by the fee mentioned in reg 5.37;
·included a written certification by the nominator stating that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act;
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
There is no evidence before the Tribunal that suggests there is any adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly, the requirements of reg 5.19(4)(b) are met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is South Australia, the relevant occupation is Chef and the date of application is 7 June 2018.
The Tribunal has reviewed the Department’s file and is satisfied that there are no licensing, registration or membership requirements required of the identified person, (the nominee), at the time of application.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
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.
There is nothing before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
The Tribunal is satisfied that the applicant 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.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is 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 documents before the Tribunal show the nominating business, is a family partnership with the partners being: AK Zacharia & GK Zacharia & KP Zacaharia & MK Zacharia & PK Zacharia. It has the business name Pink Pig and trades as Pink Pig Wine Bar. The ABN of the applicant is 51 632 842 805 and was registered on 1 July 2000. The documents also show that the business name, Pink Pig, was first registered to this partnership on 29 September 2012.
For the sake of completeness, I note that since the application was lodged, AK Zacharia has been added to the partnership. However the ABN remains the same.
The 2020 Partnership tax return submitted by the applicant shows that the ABN of the partnership is 51 632 842 805 and that the partnership name is KP and MK and PK and GK and AK Zacharia.
The applicant provided partnership tax returns for the 2020 financial year and financial statements showing the partnership’s results for the years 2021, 2020 and 2019 financial years as well as business activity statements (BAS) covering the period July 2019 to June 2022.
Having considered all of the documents before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in North Adelaide, South Australia with the postcode 5006.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
There is no information before the Tribunal that indicates the applicant is involved in labour hire activities or in the hiring of labour to other unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
Genuine need for employment – regs 5.19(9)(c) and (d)
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 submissions of the applicant include that the restaurant is open every day except for Monday and Tuesday. It is open for lunch Wednesday to Friday from 12:00pm to 2:30pm and dinner Wednesday to Sunday from 5:00pm to late. In addition to on-site dining services they also provide takeaway services. There is only one chef position in the organisation chart. The business cannot operate efficiently and effectively to meet the demands of their growing customer base and will limit their capacity to provide quality service to their customers to the standard and satisfaction level they aim to achieve. The nominated role is responsible for the planning and organising the preparation and cooking of food in a dining and catering establishment.
The submissions also detail that this nominated role has been a critical part of the applicant’s business over a substantial period and has been deemed by experience and management as well as by virtue of the scale of the business utterly necessary for the smooth functioning of the business, being a nodal role. Without this nominated role the business would not have enough expertise to manage the substantive aspects of their restaurant business proficiently and effectively. This would leave their business vulnerable to failure in the face of ever-present tough competition in the busy and growing food services sector. The position of Chef is a role which is utterly important for the success of their restaurant business. In addition, having the role of chef filled by the nominee allows the partner (Mr George Zacharia) to be free to proficiently manage and lead this enterprise to capture more business by focusing on the marketing and relationship building side of things.
The Tribunal has considered evidence contained in the Department’s file together with recent additional documentary evidence provided by the applicant to the Tribunal regarding this criteria as well as the applicant’s genuine need for employment of a Chef.
The Tribunal is satisfied that the application for approval identified a need for the nominator to employ the nominee, Mr Kit Jolyon Peter Smith, in the position of Chef and that there is a genuine need.
The organisation structure, as seen in the Organisational Chart provided to the Tribunal on 11 November 2022, confirms that the position continues to fit into the business activity and that the nominee is working under the direct control of the nominator.
The Tribunal notes that a Regional Certifying Body Advice dated 25 September 2018, advises it was satisfied that there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
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 nominee has been employed full-time as a Chef since mid-2019 as evidenced by his payslips and documentation provided by the applicant and has worked continuously in the same role and still works in the business.
The Tribunal has before it a copy of the nominee’s latest Employment Contract dated 1 October 2022. It states that the nominator will provide full-time employment for the nominee in the position of full-time Chef on a salary of $61,360 per annum for at least two years in addition to superannuation. The contract does not include an express exclusion of the possibility of extending the period of employment.
The applicant provided the Tribunal with current data from PayScale, au.indeed.com. Seek.com.au and JobOutlook.gov.au that shows the salary range for a Chef in Adelaide is $55,000 to $65,000.
According to payscale.com, the average base salary for a Chef in South Australia is $59,213.
The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates and within the range of a Chef’s market salary rate in the same location.
Further, the Tribunal notes that a Regional Certifying Body Advice dated 25 September 2018, advises that the identified person would be paid at least the annual market salary rate for the occupation.
The Tribunal also considered the applicant’s financial documents and notes that the applicant is trading profitably and is satisfied that the applicant has been profitable in the period 1 June 2018 to 30 June 2021.
In addition, a letter from the applicant’s accountant, S Savvas & Associates, dated 29 May 2019, confirmed the applicant’s ability to pay its debts when they become due and payable.
Given the above, the Tribunal is satisfied that the nominator is running a viable business and has the financial capacity to employ the nominee for at least 2 years and pay his salary of $61,360 per annum in addition to superannuation.
Furthermore, based on a review of the Employment Contract, the Tribunal finds that the terms and conditions of the nominee’s employment do not and will not exclude the possibility of extending the period of employment.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. 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 (TSMIT), specified in the instrument 18/033 unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The AMSR means the earnings of 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.
Regulation 2.72(15) does not apply if the annual earnings will be at least the amount specified by legislative instrument for reg 2.72(15)(b). The amount specified for reg 2.72(15) by s5 of IMMI 18/033 is $250,000. The Tribunal notes that the nominee’s annual earnings will not be the amount specified in the relevant instrument for reg 2.72(15)(b) ($250,000). As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The Tribunal accepts, based on the submissions before it, that there is no Australian worker who is employed in the same workplace, at the same location, performing equivalent work to the nominee.
The Tribunal is also satisfied on the evidence before it, as detailed above, that the annual earnings for the occupation of Chef, has been determined by the applicant in accordance with contemporary market rates and within the range of a Chef’s market salary rate in the same location by reference to relevant market information. The Tribunal also finds that there is no applicable Fair Work or industrial instrument. As such the Tribunal is satisfied that the annual market salary rate of $59,213 for the nominated occupation is applicable to an equivalent Australian worker.

For these reasons the requirements of reg 2.72(15)(c) are met.
IMMI 18/033, Part 2 – Income Threshold and Annual Earnings, section 6 Income Threshold, states that for the purposes of paragraph 2.72(15)(d) of the Regulations, the temporary skilled migration scheme income threshold (TSMIT) is $53,900.
The Tribunal finds that the annual market salary rate of $59,213, less any non-monetary benefits, for the occupation of Chef is not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(d) are met.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(h) of the Regulations because the delegate was not satisfied the nominator demonstrated the requirements set out in subregulation 2.72(15).
However, as detailed above, the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.
The applicant has provided the Tribunal with an Employment Contract together with payslips that establishes the salary for the nominee is $61,360 per annum plus 10.5% superannuation which equates to $67,802. As detailed above, the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
Further, there is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Employment Contract provides for a salary of $61,360 plus 10.5% superannuation, which is a total of $67,802 in total. The Tribunal is satisfied that the Employment Contract has standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Cth) and National Employment Standards. The Tribunal finds there is no information that indicates the nominee’s employment conditions will be less favourable than those for the Australian equivalent.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
Nominations identifying a Subclass 187 visa can only be made before 16 November 2019 (here, made on 7 June 2018). Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
The Tribunal is satisfied from the evidence before it that the nominated position and business is located in North Adelaide, South Australia which has the postcode 5006.
At the time the application was lodged, the relevant instrument was IMMI 18/037 which specified that all postcodes in South Australia were in ‘regional Australia’.
In regard to being unable to fill the role with an Australian citizen or permanent resident who is living in, or would move to, the local area concerned, the applicant’s submissions and documentation included that they were unable to find an appropriately qualified Chef who is an Australian citizen or permanent resident, using their networks within the Hospitality Industry or through job advertisements. The role requires specialised knowledge and skills required to prepare various kind of Mediterranean, Australian and International cuisines. The nominee has been working with the applicant since mid 2019 and is still working there as a Chef. Ultimately he was the only suitable candidate for the business under the current tight job market where a huge skills shortage gap has been created due to the impacts of COVID-19. The applicant’s submissions include that the nominee is an enthusiastic person and has demonstrated great passion towards his profession while working with the applicant in the business.
The applicant provided copies of the advertisement placed on seek.com in October 2019 for a Chef/Cook and invoices from seek.com showing advertisements for this position were placed in May 2019 and October 2019.
The submissions include a job description for the role of the nominee as well as a document mapping the ANZSCO tasks for the nominate position against the ones in the position description. The Tribunal has had regard to the submissions provided in regard to the tasks already performed by the nominee and as detailed in the submitted job description and is satisfied that they correspond to the tasks of the occupation of Chef (ANZSCO 3511311) as specified in the relevant instrument (IMMI 18/043).
Further, the Tribunal is satisfied that a regional certifying body located in the same State as the position and with responsibility for the local area, (in accordance with IMMI 18/037), has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
decision
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Joanne Bakas
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
(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;
(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;
(c)either:
(i)the nominator’s business has operated for at least 12 months, and the nominator fulfilled the requirements for the training of Australian citizens and Australian permanent residents that are specified in a legislative instrument made by the Minister for the purposes of this subparagraph; or
(ii)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for fulfilling the requirements specified in the instrument mentioned in subparagraph (i).
(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 4497

23 November 2022

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