Live It Travel Pty Ltd (Migration)

[2019] AATA 4416

Live It Travel Pty Ltd (Migration) [2019] AATA 4416 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Live It Travel Pty Ltd

CASE NUMBER:  1719774

DIBP REFERENCE(S):  BCC2017/1304795

MEMBER:De-Anne Kelly

DATE:12 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 July 2019 at 2:42pm

CATCHWORDS
MIGRATION – nomination – Travel Agency Manager – Direct Entry Nomination stream – no need for employee to work in identified position under nominator’s direct control – same position already filled at organisation – not feasible to have two senior management positions with overlapping tasks and responsibilities – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 11 August 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 7 April 2017. 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations and therefore 5.19(4)(a) of the regulations because the application for approval has not identified a need for the applicant to employ a paid employee to work in the position of Travel Agency Manager under the nominator’s direct control. This was on the basis that there was already a Travel Agency Manager, Ms Kate Dever, at the nominating addess at the Sunshine Coast as listed on the organisation chart submitted with the employer nomination.

5.    The applicant appeared before the Tribunal on 23 May 2019 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent.

6.    For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8.    Live It Travel Pty Ltd is a travel agency with retail offices at two locations, one at Suite 35, 2 Innovation Parkway, Birtinya, Queensland 4575 and the other at the Gold Coast. The former location is the Sunshine Coast address used for the purposes of the nomination and the place where the nominee has been working albeit on a part time basis in 2017 and into 2018. The applicant confirmed that both businesses operate under the same ABN number and both offices financials are included in the one set of financial documents.

9.    The Tax Return for 2018 shows sales of $1,045,464 with a gross profit of $348,388 and total expenses of $341,864 including wages and salaries of $143,998 leaving a profit after tax of $6,103.The applicant on the employer nomination lodged on the 07 April 2017 gave staff numbers as four Australians and /or permanent residents and one foreign skilled worker. An organisation chart was lodged at the same time showing Ms Kate Dever as the Travel Agency Manager. At the hearing and in documents tended to the Tribunal, the applicant states that Ms Dever is now the Corporate General Manager and the nominee will fill the nominated position of Travel Agency Manager.

1. The applicant values Ms Dever greatly and needs her to take over his role and run the Sunshine Coast business as he is a sole parent with other businesses and does not have the time to run the travel agency. The applicant stated that Ms Dever as the General Manager does not serve customers but uses her time to develop strategies and plan for the year. She also does accounts and monthly reporting; attends sponsored charity events, travel expos, wedding expos and plans marketing for the new shop that the applicant plans to open at some future time.

2. Ms Dever is presently on maternity leave but the position of General Manager remains and is presently filled by another person awaiting Ms Dever’s return from leave. The nominee has been working at the Sunshine Coast office but only on a part time basis, as the applicant does not want to make a firm commitment to her until the visa refusal is resolved.

3. The Tribunal was concerned about the applicant claiming there would be two senior positions namely General Manager and Travel Agency Manager in one small travel agency where the staff numbers were to be two full time positions and some four casual and /or part time positions. This is a reasonable question, as the nominee has been working part time in the office but will be working full time were the Subclass 186 visa granted.

4. The Tribunal put to the applicant that it was not feasible to have two senior management positions with overlapping tasks and responsibilities and that the level of wages paid to these two positions meant that there was not enough money left to pay the casual and part time staff. There was considerable discussion at the hearing about the tasks and responsibilities of these two senior positions and the wages paid to the staff. The applicant made a submission after the hearing on the 6 June 2019 addressing the tasks and responsibilities of these two roles and the overall wages paid in 2018 that were $143,998. He also claimed that the two senior positions were being paid a market salary rate for that role.

5. The Tribunal therefore wants to consider whether r.5.19(4)(h) is met.

   Clause 5.19(4)(h) provides as follows;

   (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 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 subsubparagraph;
   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).

   The applicant has submitted documents in support of r. 5.19(4)(h)(ii) and therefore the Tribunal will consider r. 5.19(4)(h)(ii) and not r.5.19(4)(h)(i).

6. The Tribunal needs to consider if each of the sub clauses of 5.19(4)(h)(ii) are met including r.5.19(4)(h)(ii)(D) that states ‘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 subparagraph’. The question for the Tribunal is whether the position of General Manager is indeed that of a General Manager and if so whether the tasks and responsibilities that the General Manager undertakes are the same as the tasks of a Travel Agency Manager. If a significant number of the tasks of the General Manager are the same tasks as that of a Travel Agency Manager then the nominated positon cannot be undertaking those tasks and the nominated positon is not that of a Travel Agency Manager.

7. The other question for the Tribunal is whether the salaries paid to the General Manager and proposed to be paid to the Travel Agency Manager leave enough for the employment of the casual and part time staff. If not then the nominated position of Travel Agency Manager will not have enough staff to manage.

8. The employer nomination application was lodged on the 07 April 2017. The instrument IMMI 17/058  in writing specified by the Minister lists Travel Agency Manager, ANZSCO code 142116 and requires that the tasks to be performed in the position correspond to the tasks of the occupation Travel Agency Manager as listed in the ANZSCO.

9. Recent BAS statements are shown in the table below.

   Table 1 – BAS statements for 2019 Financial Year.

BAS statement quarter	Sales	Wages and Salaries.
Jan - Mar 2018	187,033	31,432
Apr - Jun 2018	208,478	36,492
Jul - Sep 2018	379,987	47,320
Sep - Dec 2018	332,137	42,914
Jan - Mar 2019	379,987	47,320
Apr- Jun 2019	379,987	47,320
Total	1,472,098	184,874

It should be noted that the BAS statement for Apr-Jun 2019 was not yet available but the applicant indicated that the staff numbers are constant so it is not unreasonable to take the same wages and salaries figure for this quarter as for the Jan – Mar 2019 quarter namely $47,320. This brings the total Wages and Salaries for the 2019 Financial Year to approximately $184,874. It must be remembered that the actual wages and salaries for 2018 were $143,998 that is some $40,876 less than the figure shown on the BAS statements.

1. The applicant confirmed that Ms Dever’s position is paid $ 30.50 per hour or $60,268 pa and the Travel Agency Manager’s salary is shown on the employment contract as $54,000. It needs to be remembered that the profit after tax for 2018 was only $6,103 despite a turnover of $1,045,464 so the business is constrained in the wages it can pay without becoming unprofitable. The applicant stated that the business would increase it’s turnover and be much more profitable however that is a future aspiration and not the case on present figures.

2. The applicant states that there are two full time staff and four casuals at the Sunshine Coast office and two part time staff at the Gold Coast office.

3. The Tribunal needs to consider the staff make up at the two offices taking into account the total amount available to pay wages and salaries. The part time and casual staff would be paid in a range from $789.90 pw to $871.80 pw pr or $20.79 per hour to $ 22.94 per hour respectively according to the General Retail Industry Award 2010. The applicant stated that he pays the legal amount to staff but no business proprietor wants to pay more than they have to, so it is just the legal amount. The legal amount would reasonably be the minimum wages for the classifications in the Award.

4. Taking the total amount for wages in the 2019 financial year just ended, as $184,874 less Ms Dever’s salary of $60,268 and the nominee’s proposed wage of $54,000 leaves $70,606 to employ the other staff. If this amount is divided by the low to high range of wages paid to the staff per hour namely $20.79 to $22.94 a total number of hours of work that can be purchased by the applicant is shown as a range from 3,396 to 3,077 hours for the year, as shown below in the table.

5. Dividing this by 52 weeks in the year gives a total number of hours available per week for the P/T and casual staff of between 65 and 59 hours per week. These hours need to be allocated in some reasonable way between the Gold Coast and Sunshine Coast offices. The applicant plans in the future for Ms Dever to run the Gold Coast office, and there is no suggestion that it is shut at various times so it is reasonable to assume there is at least one staff member there during opening hours. Under the National Employment Standards NES the maximum hours per week are taken at 38 hours.  

6. So, the Tribunal will take it that 38 hours of the available total hours would be taken up by the Gold Coast office to ensure it is open during business hours. Deducting this from the total hours leaves the amount of hours that can be worked by the P/T and casual staff at the Sunshine Coast office and that is in a range of 27 to 21 hours per week depending on the retail wage paid to the staff.

   This means that for almost half of the working week there are no P/T or casual staff at the Sunshine Coast office only Ms Dever’s position and the nominee.

   Table 2 – Analysis of available hours for P/T and casual staff in both offices.

Hourly rate for retail staff $/hour	Total wages amount for P/T and casual staff $	Total Hours of work for P/T and casual staff	Total Hours of work per week for P/T and casual staff	Less the 38 hours per week to keep the Gold Coast office open.	Total Hours available to the P/T and casual staff at Sunshine coast office.
20.79	70,606	3,396	65	-38	27
22.94	70,606	3077	59	-38	21

It was open to the Tribunal to use the wages and salaries figure of $ 143,998 from the 2018 Financial Year. This was the figure the applicant used in the submission made on the 6 June 2019. Figures in BAS statements can be adjusted for up to four years after the BAS statement is lodged and are therefore not as reliable as bank statements or PAYG. Nonetheless, the Tribunal will use the total wages shown on the BAS statement although this presents the business in more favourable situation.

The table above and the calculation show that if the Tribunal accepts that Ms Dever’s position is paid $60,268 per annum and the nominee is to be paid $ 54,000 per annum then there will only be staff members  in the Sunshine Coast office for between 27 and 21 hours per week. So, the nominated position of Travel Agency Manager will only have a staff member to supervise for between 27 and 21 hours of the week. If the Tribunal accepts the roles as described, it presents the rather unusual situation of the General Manager and the Travel Agency Manager, having no other staff to manage for a portion of the working week.

1. The Tribunal asked the applicant how the business could operate when the full time wages for the General Manager and Travel Agency Manager left only $70,606 for the employment of other staff. He responded on more than one occasion saying he employed international students whom he did not pay. If the Tribunal accepted this explanation it would see the applicant in breach of the Fair Work Act and therefore unable to meet r.5.19(4)(g) that provides as follows;

   (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;

2. The Tribunal does not accept this explanation is it is at odds with the applicant’s statement that he pays the legal wage and that no proprietor wants to pay more than they are legally obligated to pay. The applicant is aware of his legal obligations so the Tribunal does not accept that he would avoid these obligations.

3. The Tribunal also accepts that the applicant has made Ms Dever the General Manager of the business and that she does not serve customers but engages in the higher tasks and responsibilities of the role.

4. The applicant on the 6 June 2019 submitted a table showing the ANZSCO tasks of the position General Manager and compared them to the tasks and responsibilities of the position held by Ms Dever. The Tribunal notes that the applicant has listed all the tasks and responsibilities of the General Manager as listed in ANZSCO as being undertaken by Ms Dever’s position except for “Selecting and Managing the performance of senior staff”.

5. The Tribunal has prepared a table below which show in column one the ANZSCO list of tasks for the position of General Manager. In the second column is the tasks as listed in ANZSCO which the applicant states are undertaken by Ms Dever’s position of General Manager. In the third column are the ANZSCO list of tasks for the position of Retail Manager or in this case Travel Agency Manager. In column four are the tasks as listed in the ANZSCO which the applicant states are shared by the General Manager and the nominated position or are delegated to the nominated position by the General Manager. In the fifth and final column are the ANZSCO list of tasks that the Tribunal accepts as part of the nominated position.

   Table 3 – Applicants and Tribunals consideration of the General Manager & Travel Agency Manager ANZSCO tasks.

ANZSCO 111211 General Manager: Tasks include.	Applicant attributes these tasks to Ms Dever’s position	ANZSCO 142116 Retail Manager – Travel Agency Manager Tasks include.	Tasks applicant attributes to Travel Agency Manager.	Tasks Tribunal accepts as Travel Agency Managers tasks.
1) GENERAL MANAGERS plan, organise, direct, control and review the day-to-day operations and major functions of commercial, industrial, government and defence organisations through departmental managers and subordinate executives.	GM	RETAIL MANAGERS organise and control the operations of establishments which provide retail services.	GM and TAM together.	Tribunal does not accept this task is undertaken by the nominated position as it is undertaken by Ms Dever’s General Manager position See [31] below.
2) planning policy, and setting standards and objectives for organisations	GM.	determining product mix, stock levels and service standards	N/A	N/A
3) providing day-to-day direction and management of organisations, and directing and endorsing policy to fulfil objectives, achieve specific goals, and maximise profit and efficiency	GM	formulating and implementing purchasing and marketing policies, and setting prices	GM and TAM together	Tribunal does not accept this task is undertaken by the nominated position as it is undertaken by Ms Dever’s General Manager position See [34] below.
4) assessing changing situations and responding accordingly by issuing commands and directives to subordinate staff	GM	promoting and advertising the establishment's goods and services	TAM	Tribunal does not accept this task is undertaken by the nominated position as it is undertaken by Ms Dever’s General Manager position See [35] below.
5) consulting with immediate subordinates and departmental heads on matters such as methods of operation, equipment requirements, finance, sales and human resources	GM	selling goods and services to customers and advising them on product use	TAM by delegation	The Tribunal accepts that this is a task of the nominated position.
6)authorising the funding of major policy implementation programs	GM	maintaining records of stock levels and financial transactions	TAM prepares for GM’s review and finalistion.	The Tribunal does not accept that task is relevant to the nominated position. See [36] below.
7) representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility	GM	undertaking budgeting for the establishment	TAM in consultation with GM.	Tribunal does not accept this task is undertaken by the nominated position as it is undertaken by Ms Dever’s General Manager position See [37] below.
8) preparing, or arranging for the preparation of, reports, budgets and forecasts, and presenting them to governing bodies	GM	controlling selection, training and supervision of staff	TAM looks after training and supervision however in consultation with GM on selection. Staff members are managed by the TAM.	The Tribunal accepts this  task as half undertaken as the nominated position will have junior staff to supervise from 27 to 21 hours per week.
9) selecting and managing the performance of senior staff	--	ensuring compliance with occupational health and safety regulations	TAM	The Tribunal accepts that this is a task of the nominated position.
10)may undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations	GM & TAM together except accounting which is GM responsibility.
10 tasks and responsibilities	9 tasks out of 10 tasks for GM.	2.5 out of 9 tasks met by the TAM or 28% of tasks.

The Tribunal is mindful that ANZSCO is not prescriptive however the Tribunal is also aware of the need for qualitative analysis as stated by Judge Smith. He was referring to reg.2.72(10)(f) nonetheless the statement is applicable to the Tribunals decision making in regard to r.5.19(4)(h)(ii)(D). ‘... what is required … is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another… Judge Smith Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30].

1. The ANZSCO list the following as a task for a Travel Agency Manager namely, ‘RETAIL MANAGERS organise and control the operations of establishments which provide retail services”. The ANZSCO list the following as a task for a General Manager, “GENERAL MANAGERS  plan, organise, direct, control and review the day-to-day operations and major functions of commercial, industrial, government and defence organisations through departmental managers and subordinate executives.. Ms Devers’ position as the General Manager has the responsibility to organise and control the day-to day operations of the commercial organisation. .(Emphasis added)

2. In the submission of the 6 June 2019, the applicant contends that the General Manager and the nominated position share this task or responsibility.

3. The Tribunal needs to consider whether it is reasonable to attribute one task to two separate people. There are financial implications to consider. The business would not pay high salaries to two separate employees to undertake the same tasks and responsibilities, particularly when the business is constrained in its’ ability to employ and pay junior staff. The applicant has made it clear in his submission that all the tasks of the General Manager position as listed in ANZSCO are undertaken by Ms Dever’s position. The Tribunal does not accept that the nominated position has shared responsibility for tasks that the General Manager undertakes.

4. The ANZSCO list the following as a task for a Travel Agency Manager namely “formulating and implementing purchasing and marketing policies, and setting prices’. The ANZSCO list the following as a task for a General Manager under task 10 ‘may undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations’. Ms Dever’s position has the responsibility for marketing, sales and other specialist operations such as setting prices. The applicant has made it clear in his submission that all the tasks of the General Manager position as listed in ANZSCO are undertaken by Ms Dever’s position. The Tribunal does not accept that the nominated position has shared responsibility for tasks that the General Manager undertakes.  Therefore, the nominated position does not have responsibility for “formulating and implementing marketing policies and setting prices” since this is undertaken by the General Manager. The final task attributed to the ANZSCO Travel Agency Manager namely “formulating and implementing purchasing policies “ would again be part of the “other specialist operations” which are undertaken by the General Manager. (Emphasis added)

5. The ANZSCO list the following as a task for a Travel Agency Manager namely ‘promoting and advertising the establishment's goods and services’. The ANZSCO list the following as a task for a General Manager under task 10 ‘may undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations’. Ms Dever’s position has the responsibility for sales and marketing. The applicant has made it clear in his submission that all the tasks of the General Manager position as listed in ANZSCO are undertaken by Ms Dever’s position. The Tribunal does not accept that the nominated position has shared responsibility for tasks that the General Manager undertakes such as sales and marketing which could also be described as ‘promoting and advertising’.  Therefore, the nominated position does not have responsibility for “promoting and advertising” since this is undertaken by the General Manager.  (Emphasis added)

6. The ANZSCO list the following as a task for a Travel Agency Manager namely,’ maintaining records of stock levels and financial transactions’.  Stock levels are more relevant to retail operations where there are goods sold rather than to a retail outlet where services are sold. The Tribunal does not consider that task relevant to a Travel Agency.

7. The ANZSCO list the following as a task for a Travel Agency Manager namely ‘undertaking budgeting for the establishment’ The ANZSCO list the following as a task for a General Manager under task 8 ‘ preparing, or arranging for the preparation of, reports, budgets and forecasts, and presenting them to governing bodies’. The applicant has made it clear in his submission that all the tasks of the General Manager position as listed in ANZSCO are undertaken by Ms Dever’s position. The Tribunal does not accept that the nominated position has shared responsibility for tasks that the General Manager undertakes such as ‘preparation of …budgets’ which could also be described as ‘undertaking budgeting for the establishment’.  Therefore, the nominated position does not have responsibility for “undertaking budgeting for the establishment’” since this is undertaken by the General Manager. (Emphasis added)

8. The Tribunal has considered the tasks of a Travel Agency Manager and found that only 2.5 out of a total of nine tasks are undertaken by the Travel Agency Manager position. The Tribunal has considered what percentage of tasks to be performed in the nominated position would reasonably be said to correspond to the tasks of an occupation specified by the Minister. The Oxford Dictionary online provides the following definition of correspond.’ Have a close similarity; match or agree almost exactly.’ A 28% similarity would not reasonably be said to have a ‘close similarity’ or to ‘match or agree almost exactly’.

9. Only 2.5 or 28 % of the tasks to be performed in the nominated position with Live it Travel Pty Ltd are tasks of the occupation Travel Agency Manager specified by the Minister in writing. The Tribunal finds that 28% of the tasks does not meet the definition of ‘correspond’.

10. Therefore the tasks to be performed in the position nominated by Live it Travel do not correspond to the tasks of the occupation Travel Agency Manager specified by the Minister in writing and r.5.19(4)(H)(ii)(D) is not met and r. 5.19(4)(h)(ii) is not met.

11. Accordingly the requirements of r.5.19(4)(h) are not met.

12. 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.

    De-Anne Kelly
    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).