LAUREN WOOD INVESTMENTS PTY LTD (Migration)

LAUREN WOOD INVESTMENTS PTY LTD (Migration) [2017] AATA 1891 (2 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LAUREN WOOD INVESTMENTS PTY LTD
CASE NUMBER:  1612995
DIBP REFERENCE(S):  BCC2015/3386371
MEMBER:Dr Colin Huntly
DATE:2 October 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 02 October 2017 at 12:26pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Direct Entry Nomination stream – Whether the applicant meets all requirements for approval of the nomination – Employed on full-time basis for at least 2 years – Nominator actively and lawfully operating a business – No less favourable terms and condition of employment
LEGISLATION
Migration Act 1958, ss 245AR, 359A
Migration Regulations 1994, r 1.13A, r 1.13B, r 5.19, r 5.37

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 July 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations). The nomination is for a Hair or Beauty Salon Manager (ANZSCO 14211).
The applicant applied for approval on 17 November 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations. In particular, the delegate formed the view that the nominator had not demonstrated that the business will be able to provide a full time permanent position for the nominee for at least 2 years.
This application for review was initially constituted to Member Tony Caravella. When Member Caravella was not reappointed at the expiration of his term, the application for review was re-constituted to Member Dr Colin Huntly.
Ms Beverley Lauren Wood, Director and sole shareholder of the applicant, initially appeared before the Tribunal for the applicant on 13 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated employee, Gemma Todd.
The applicant was represented in relation to the review by its registered migration agent. The agent attended the initial Tribunal hearing.
Ms Beverley Lauren Wood (Ms Wood) began her evidence by telling the Tribunal that the business which has nominated the position under review moved its premises in December 2015. They moved to a location in Francis Avenue, Karrinyup. She told the Tribunal that the business focuses on dermal or skin care. She said she had operated the business under a lease for almost 4 years and she wanted to change the focus of the business away from makeup to being a skin specialist studio.
Ms Wood told the Tribunal that she understood the reason why the delegate refused to approve the nomination was because the business was new. She told the Tribunal that the building they were moving into in Karrinyup went into receivership and so their relocation was delayed until April 2016. She said that during this time, they operated the business from the rear of a site in Walcot Street.
Ms Wood told the Tribunal that the nominated employee, Gemma Todd, is a valuable asset. She said their clients like to have the same or regular employee when they visit the studio. She explained that some of the procedures are comparatively invasive and personal.
The Tribunal asked Ms Wood how she recruited the nominated employee. She said that she met her through a waxing clinic in Subiaco where she would attend as a client. The nominee worked there.
The Tribunal asked Ms Wood to comment on the delegate’s finding in relation to the financial reports for the year ended 30 June 2015. Ms Wood began by referring to previously having to pay rent of $1,000 per week and because of that overhead they could not build up the business. She also submitted that she has some personal issues with a partner during this period.
The Tribunal referred to the financial reports before it and asked why there was no entry for the $1,000 per week rent in the profit and loss statements as claimed. Ms Wood told the Tribunal that she did not know how her accountant had treated the rent paid.
Ms Wood told the Tribunal that she is currently enrolled in an Advanced Diploma in Dermal Science. This course commences in May 2017. It is conducted by the Australian Academy of Dermal Science. She said she also has two step children, aged 2 years and 5 years. She said she runs them to school and has other caring responsibilities.
Ms Wood told the Tribunal that Gemma Todd’s skills are more extensive than her own in some areas. She said that she is confident she can leave the business to Gemma and it will be in safe hands.
Ms Gemma Todd told the Tribunal that she studied Beauty Therapy in the United Kingdom. She said she completed Levels 2 & 3 in the UK and that this is the equivalent of a Diploma qualification in Australia. She said she had worked in a salon in Northern Ireland and managed a salon for one year. She told the Tribunal that she first entered Australia in November 2013. She entered on a working holiday visa, then completed a second working holiday visa and now is on a bridging visa. She told the Tribunal that she loves the job, has relevant training and skills, and is capable of managing. She told the Tribunal that she is responsible for managing a remedial massage therapist (Cheryl Wallace). Ms Wood explained that Monique Roberts who worked with the Salon before has moved on, and Samantha O’Connell invoices the business when she provides services for it. She also referred to a Gemma Derrick who also does not appear on the organisation chart. She told the Tribunal that Ms Derrick is a registered nurse and administers botox injections as part of the business’s range of services.
Ms Wood told the Tribunal that if Ms Todd ceased working for the business, the impact would be very significant. She said that some of the treatments offered by the business and currently performed by Ms Todd would have to be discontinued until Ms Wood completes the qualification that she is currently enrolled to begin in May 2017.
Ms Wood told the Tribunal that the business is operating lawfully and all the insurances are paid and up to date. She also confirmed that Gemma Todd only works for the nominating business and is not employed by a labour-hire entity (per.5.19(4)(c)).
Ms Wood told the Tribunal that she wants the nominee to continue working for as long as possible. She indicated that the plan is for the business to continue operating into the foreseeable future and that their decision to change business location was as a result of observing that something was not working properly and deciding to change it.
Ms Wood told the Tribunal that she believes she meets 5.5.19(4)(e) and said that she would employ Australians as well as persons on visas. She said that one of her former employees moved on to set up her own business.
Ms Wood told the Tribunal that she has never been prosecuted for non-compliance with relevant laws or obligations.
In relation to r.5.19(4)(h), Ms Wood told the Tribunal that Ms Todd emails her stock requirements for ordering. Ms Todd also deals with difficult clients and any complaints, although she added there had not been complaints conveyed to her. Ms Wood also described how she sends details to her accountant of hours worked by employees so that the accounts and salaries are paid. She said that the nominee also has responsibility for boxing and double bagging rubbish and sharps for collection.
In relation to training, Ms Wood told the Tribunal that the business deals with advanced cosmecauticals and with machines and a range of products. She submitted that she has to pay for the training provided to employees of the business. She said she has paid between $60 up to $200 for a day’s training. She referred to planning to send one of the employees, Cheryl, to a remedial massage course for which she is paying $600.
Ms Wood told the Tribunal that she has been unable to fill the position by an Australian citizen, permanent Australian resident or eligible New Zealand citizen. She told the Tribunal that she adviertised the position in Seek.com and in Gumtree but this failed to result in any suitable applicant applying for the job.
The applicant’s representative requested time to provide further written submissions. The Tribvunal agreed to allow 7 days. He also submitted that the business is growing and that relevant information to confirm this would be submitted.
On 20 March 2017, the Tribunal received a written submission from the applicant’s representative, together with various attachments, which the Tribunal summarises as follows:
a) it is submitted that r.5.19(4)(h)(ii) applies in the nominator’s case and that the nominated position and the employer meet all the criteria for that sub regulation;
b)   Business Activity Statements for the year ended 30 June 2016 are attached together with a “management profit and loss”. The tax return for the year is being prepared by PWC who would provide the Tribunal with a letter;
c)   it is submitted that the lease for the Walcott Street premises was not actually in the name of Lauren Wood Investment Pty Ltd but in a parent company owned by Ms Wood’s father. A lease is attached, together with a ASIC extract of the parent company. It is submitted Ms Wood’s father signed for the lease which was not renegotiated after 1 December when a new tenant took over. It is submitted that Lauren Wood Investments stopped paying the sublease which the main tenant was required to pay. It is submitted this explains why Lauren Wood Investments Pty Ltd showed little rental expense in 2015 financial year as Plant And Equipment Pty Ltd met the lease obligations;
d)   in relation to the variance in wages on the BAS, the submission refers to a new profit and loss statement for the period 1 July 2016 to 31 December 2016. It submits extra wages that were listed were directors allowances that were paid to Ms Wood. As they do not constitute wages paid to employees, they were omitted in the BAS. The accountant has rectified the financial reports to align with the BAS;
e)   it is submitted that after a transition to the new premises, the business is now trading profitably. It is submitted that given the business has been paying the employee for the past 18 months, it has proven that it has the financial capacity.
The attachments referred to in the preceding paragraph include:
a)a letter dated 21 March 2017 from PricewaterhouseCoopers stating they are preparing the special-purpose financial statements and income tax return for the year ended 30 June 2016 for Lauren wood investment propriety Limited and they would be submitted for lodgement with the Australian taxation office on 15 May 2017;
b)an ASIC current company extract for Equipment And Plant Pty Ltd, and for Lauren Wood Investments Pty Ltd;
c)a copy of a lease agreement between Egotrip Pty Ltd (Lessor) and Equipment And Plant Pty Ltd for premises located at 83 Walcott Street, Mt Lawley;
d)a profit and loss statement for the period July 2015 to June 2016, which shows, total income for the period was $37,882.17, total cost of sales was $25,582.63. Total employment expenses are shown as $179,863.90. The net profit/loss for the year is shown as a loss of -$205,727.34
e)a profit and loss statement for Lauren Wood Investments Pty Ltd for the period July 2016 to December 2016. The Tribunal notes the total income for this period is shown as $64,105.67, the gross profit was $29,527.70, the total employment expenses was $27,565.74 and the net profit/loss is shown as a loss of $25,142.35;
f)a balance sheet described “As at June 2016” shows total assets as $16,673.75 and total liabilities are shown as $526,741.59 with net assets shown as -$510,067.84.
Following re-constitution to Member Dr Colin Huntly, a hearing was scheduled with the applicant on 7 September 2017.
Prior to the hearing, the applicant had notified the Tribunal that it wished the Tribunal to hear from the applicant’s accountant, a CPA and Director of the firm Blitz Logic Pty Ltd. the applicant also submitted to the Tribunal a letter from its accountant dated 11 May 2017, stating as follows:
I make the following comments;
•The new premises in Karrinyup was not opened until April 2017 since opening the business has shown healthy sales growth without significant marketing
•Marketing through traditional channels and social media has commenced in late calendar year, initial results are very positive again point to healthy sales growth and ongoing profitability of the business
•Due to the failure of the previous premises and the delay in start of the new premises Lauren Wood had a significant carried forward loss position at 1 July 2016
•Equipment and Plant Pty Ltd ensured the liquidity of the company during this period even to the extent of ensuring staff (Gemma Todd) was continued to be employed and paid despite her underutilisation
•David Wood director of Equipment and Plant Pty Ltd has agreed to continue their support of Lauren Wood Pty Ltd
•The Loans from him personally Equipment and Plant account for the net asset position mentioned by the member in his concerns
•Please note that the accountants have entered a distribution from the Wood Family Trust and as such the 2016 accounts now show a loss of only $4,458. Please find attached Financial Statements and Tax return prepared by PWC
I have complete confidence that Lauren Wood will remain a computed employer to Gemma Todd and will ensure her ongoing role at the clinic.
On the morning of the hearing the Tribunal received a postponement request from Ms Beverley Lauren Wood on the grounds of ill health. Ms Wood indicated that she was unwell and that the Tribunal would be provided with a medical certificate to that effect.
In response, Tribunal stated that, in the absence of a medical certificate, the hearing would proceed as scheduled. The Tribunal notes that no medical certificate relating to the date of the hearing has since been provided by Ms Wood, as at the date of this decision.
At the time of the hearing the applicant was represented in relation to the review by its registered migration agent. The agent attended the Tribunal hearing on behalf of his client.
At the hearing, the Tribunal asked the applicant’s registered migration agent if he had any further submissions to make on behalf of his client. The agent replied in the negative.
The Tribunal then heard from the applicant’s accountant, as a nominated witness, by means of a teleconference. The Tribunal asked the witness if she had anything further to add to the submission referred to above dated 11 May 2017. The witness replied in the negative.
At this point in the hearing the Tribunal provided the applicant’s agent with a document that had been downloaded by the Tribunal from the ASIC company register earlier that day. This document indicated that the applicant company had been deregistered. Neither the applicant’s agent nor the applicant’s accountant had any knowledge of this deregistration.
The Tribunal referred to its statutory obligations at section 359A of the Migration Act, and indicated to the applicant’s agent that the Tribunal would be writing to the applicant providing details of this information and seeking a response is required by the Act. The hearing was thereafter adjourned.
On 8 September 2017, the Tribunal wrote to the applicant in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite LAUREN WOOD INVESTMENTS PTY LTD to comment on or respond to certain information which we consider would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·The information attached was provided to your authorised representative at the scheduled hearing of the application under review. This information suggests that the applicant nominating company was deregistered on 7 July 2017, and that its ABN was cancelled from 21 August 2017.
·If this information is accepted as correct by the Tribunal, it would be the reason for the Tribunal affirming the decision under review.
LAUREN WOOD INVESTMENTS PTY LTD is invited to give comments on or respond to the above information in writing.
The applicant was advised that any response to this letter should be received by 22 September 2017.
On 22 September 2017 the Tribunal received a submission in the form of a letter from the applicant’s accountant to the applicant’s registered migration agent stating as follows:
I am writing to clarify the current situation of the deregistration of Lauren Wood Investments Pty Ltd (Lauren Wood) by ASIC and subsequently the ATO.
I was advised that the AAT had shown documentation that the company had been deregistered, I investigated and learned that the address that ASIC has on file was an old unattended address. Due to this the yearly fees had not been paid and ASIC had taken the step to de-register the company.
Subsequent to this we have filled in an application to re-instate, see attached copy of forms submitted 21 September 2017. We expect this to be processed with a four week turnaround.
On 22 September 2017 the Tribunal responded to the above submission by writing to the applicant in the following terms:
The Tribunal has received documents in the form of a submission in response to its earlier correspondence relating to the apparent deregistration of the applicant company.
The Tribunal is of the view that submissions received to date are insufficient to answer the concerns raised in its earlier correspondence.
The Tribunal is prepared to extend its deadline for submissions on the outstanding questions until 29 September 2017. In the absence of a detailed and convincing submission on the underlying question, the Tribunal will proceed to finalise this application without further correspondence.
On 29 September 2017, the Tribunal received the following email submission from the applicant’s registered migration agent:
Hi AAT,
ASIC has still not updated the record, may we request an extension of time again as everything has been fixed but are just awaiting the update from ASIC.
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 requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

Insert findings and reasons relating to whether the application for approval:
·was made on the approved form 1395, or 1395 (Internet) for post 23 March 2013 applications, and was accompanied by the fee prescribed in r.5.37;
·for applications made from 14 December 2015 – includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is not met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
·The Tribunal finds that at the time of this decision the applicant has been, and continues to be, deregistered, due to its failure to comply with its statutory obligations to ASIC and the ATO. Accordingly, the applicant company does not appear to be actively and lawfully operating a business in Australia.
·The Tribunal has had regard to the submissions of both the applicant’s accountants and the applicant’s registered migration agent to the effect that these deregistrations were an oversight, and is in the process of being corrected. However, the Tribunal notes that the applicant, the applicant’s accountants or the applicant’s registered migration agent were unaware of the applicant’s deregistration by the ATO or ASIC at the time of the most recent hearing with the Tribunal. Further, it was only after the Tribunal brought this to the attention of the applicant’s accountants and the applicant’s registered migration agent that the applicant took any steps to address this oversight.
·A lack of attention to statutory compliance requirements such as is demonstrated by the above conduct, over a period of months, is not consistent with the visa requirement to actively and lawfully operate a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is not met.
Position is not labour-hire: r.5.19(4)(c)
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.
·The Tribunal notes that there is some question about the employment arrangements regarding the nominated employee, Gemma Todd.
·In a submission of 20 March 2017, the applicant’s nominated representative suggested that the applicant has a parent company; namely, Equipment and Plant Pty Ltd. It is unclear to the Tribunal how this entity can reasonably be described as a “parent company”, given that the applicant has only one shareholder, who is also its only director.
·The Tribunal also notes the evidence of the applicant’s nominated representative to the effect that:
a)Equipment and Plant Pty Ltd ensured the liquidity of the company during this period even to the extent of ensuring staff (Gemma Todd) was continued to be employed and paid despite her underutilisation
b)Mr David Wood director of Equipment and Plant Pty Ltd has agreed to continue their support of Lauren Wood Pty Ltd
·The Tribunal notes that the foregoing evidence demonstrates that the liquidity of the applicant is so problematic that the salary of the nominated employee has been paid, or at least underwritten by contributions from an uncontracted third party. While this does not technically meet the relevant definition of a “labour-hire” position, it is sufficiently irregular to suggest that this visa criteria is, or has not been, met.
Accordingly, the requirement in r.5.19(4)(c) is not met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
·The Tribunal notes the following evidence provided by the applicant and the applicant’s nominated representative:
a)a profit and loss statement for the period July 2015 to June 2016, which shows, total income for the period was $37,882.17, total cost of sales was $25,582.63. Total employment expenses are shown as $179,863.90. The net profit/loss for the year is shown as a loss of $205,727.34;
b)a profit and loss statement for Lauren Wood Investments Pty Ltd for the period July 2016 to December 2016. The Tribunal notes the total income for this period is shown as $64,105.67, the gross profit was $29,527.70, the total employment expenses was $27,565.74 and the net profit/loss is shown as a loss of $25,142.35;
c)a balance sheet described “As at June 2016” shows total assets as $16,673.75 and total liabilities are shown as $526,741.59 with negative net assets shown as $510,067.84;
d)Equipment and Plant Pty Ltd ensured the liquidity of the company during this period even to the extent of ensuring staff (Gemma Todd) was continued to be employed and paid despite her underutilisation;
e)Mr David Wood director of Equipment and Plant Pty Ltd has agreed to continue their support of Lauren Wood Pty Ltd; and
f)The applicant is currently deregistered by both ASIC and the ATO.
·The foregoing evidence is not indicative of an employing corporation that is a viable going concern. For this reason, the Tribunal finds that there are insufficient grounds to believe that the nominee to be employed in the nominated position for at least 2 years full time by the applicant.
Accordingly, the requirement in r.5.19(4)(d) is not met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
·The Tribunal refers to its finding above that there are insufficient grounds to believe that the nominee to be employed in the nominated position for at least 2 years full time by the applicant.
Accordingly the requirements of r.5.19(4)(e) are not met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
·There is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
·There is no information before the Tribunal to suggest that the applicant has an unsatisfactory 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.
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)
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 (see legislative instrument IMMI 15/092 (Hair or Beauty Salon Manager (ANZCO Code 142114)), and certain specified training benchmarks will be met; or
The Tribunal makes the following findings:
·As to whether:
·the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument (see ‘Occ’ tab of the Register of Instruments - Business Visas), and the nominator either:
·meets the training requirements specified in the relevant instrument (if the business has operated for over 12 months) (see ‘Training’ tab in ‘Register of Instruments – Business visas’);
a) The Tribunal notes that the applicant’s Director has provided evidence of a vague and general nature relating to paying between $60 to $200 per day for staff training, and of having an intention of paying in the vicinity of $600 in staff training at an unspecified date for an unspecified course. The Tribunal notes that none of the financial information provided to it by the applicant indicates where any specified training expenditure has been incurred by the applicant.
·or,
·has an auditable plan for meeting the training requirements (if the business has operated for less than 12 months); OR
b) The applicant has not provided an auditable plan for meeting the training requirements (if the business has operated for less than 12 months).
Accordingly the requirements of r.5.19(4)(h) are not met.
CONCLUDING PARAGRAPHS
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Dr Colin Huntly
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
(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;
(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;
(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).

[2017] AATA 1891

2 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction