LT Corporation Pty Ltd (Migration)

LT Corporation Pty Ltd (Migration) [2022] AATA 1050 (19 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LT Corporation Pty Ltd
CASE NUMBER:  2011859
HOME AFFAIRS REFERENCE(S):          BCC2019/945448
MEMBER:Michelle East
DATE:19 January 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 19 January 2022 at 2:29pm
CATCHWORDS
MIGRATION – nomination – Project Manager – adverse information – conviction – position associated with the nominated occupation was not genuine – the application was lodged to secure an immigration outcome – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140, 245AR
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 3 July 2020 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 17 January 2020. 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)(g) and (d) because she was not satisfied that the applicant had demonstrated the financial capacity to employ the nominee in the nominated occupation for a period of at least two years and also that the position of Accountant did not appear to be genuine and instead the application was lodged to secure an immigration outcome.
The applicant appeared before the Tribunal on 18 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Badran, the proposed nominee.
The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. Both parties confirmed at the hearing that they were happy for the hearing to proceed in this manner.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in DE 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).
The Tribunal is satisfied, based on its review of the nomination application form that all these formal requirements have been satisfied.
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
The Tribunal has examined the Department’s records and is satisfied that the application accompanied a nomination training contribution charge.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019. As the subclass identified in the application is Subclass 186, this provision is not relevant.
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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
Mr Theoharapoulos has provided details of adverse information in the nomination application. The details were that he had been made bankrupt from 2003-2006 and also was director of a company which went into liquidation in 1999.
Further details were provided in a letter from the Accountants for the applicant dated 28 June 2011. That letter stated the applicant had been found guilty in a jury trial of nineteen counts of obtaining a financial advantage by deception, following a trial which lasted three weeks. These charges were laid following an investigation by ASIC.
Mr Theoharapoulos received a custodial sentence of two and a half years which was wholly suspended.
The Tribunal will not look behind a conviction and notes the seriousness of the offending.
The Tribunal questioned Mr Theoharopoulos about the details of the conviction and the circumstances surrounding it.
Mr Theoharopoulos stated that the offences were a long time ago and he was shocked to find that his previous agent did not declare the conviction. Ultimately, it is his responsibility when lodging the application to take responsibility for its contents and the Tribunal does not accept this excuse.
The fact that the offences took place some time ago and that he has been involved in financing since that time does not, in the Tribunal’s opinion, ameliorate the seriousness of the conviction.
The Tribunal does not consider it reasonable to disregard this adverse information, particularly in light of the fact that he is heavily involved in financing and project management in his role as a director.
Given the above findings, the Tribunal is not satisfied that reg 5.19(4)(b) is 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 Tribunal has been provided with an employment contract dated 13 December 2019 for the proposed nominee which provides for at least a minimum of 2 years employment as a General Accountant on a full-time salary of $75,000.
To be satisfied that this regulation is met, the Tribunal must consider whether the 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 Tribunal has examined the financial accounts provided as part of the nomination application as well as financial documents submitted after the hearing.
Mr Theoharopoulos gave evidence that the applicant operates as a Project Manager. A development site is sourced, pre-development checks are undertaken, tendering is done, liaison takes place with consultants and agents and construction then proceeds. He said that they compile a syndicate of investors.
Mr Theoharopoulos’s evidence was that they currently have projects worth $84M construction with an end value of $130M. He further stated that their debt-equity ratio is not greater than 50%.
The Tribunal had concerns about the accuracy of the financial accounts given that the wages bill for 2019/2020 was approximately $192,000 and for 2020/2021 was approximately $184,000. If the proposed nominee was paid her salary of $75,000 and other employees have been employed full-time during those financial years, adequate provision may not have been made for their wages.
The proposed nominee’s evidence was that there are six full time employees currently on the payroll. A payroll activity summary for the period 8.11.21 – 12.11.21 was provided to the Tribunal after the hearing which noted that the applicant employs five full-time employees other than herself together with Mr Theoharopoulos. It is stated that he does not receive a salary as he receives his entitlements from the profit distribution from the company which has typically been approximately $80,000 per year. The applicant pays its employees from its income recorded as an expense in its profit and loss statements.
Of the six full time employees, two of those have started within the last six months. Considering the wages extract provided to the Tribunal, the provision for wages in the financial accounts is still below what should be paid to those four employees. That is, looking at 2020/2021, the wages expense was approximately $184,000. The oral evidence of the proposed nominee was that two of those employees had been employed for 6 years with the company. One other employee had been employed for one year. If his salary is halved to only reflect six months of wages, the wage expense is still lower than what should have been paid. The submission provided on 24 November 2021 states that Mr Ercolano was not paid during the relevant period because he was on leave without pay. There is nothing to indicate however that he was on leave without pay during any earlier periods in the year. Given the degree of detail provided by the proposed nominee about their wages and employment history, it is also something the Tribunal would have expected to have received evidence about.
Furthermore, looking at the 2016/2017 financial statements provided, it records a wages expense of $125,501 for the year. In a submission to the Tribunal dated 18 August 2021, Mr Theoharopoulos stated that the proposed nominee was promoted to a permanent full-time position on 17 October 2016 as a senior accountant and paid a salary of $75,000. This allows approximately $50,000 for two other employees who, according to the oral evidence given at the hearing, have been employed for 6 years.
Assuming that the Tribunal’s calculations may be incorrect, the Tribunal indicated it would like to see pay slips for the employees with references to the relevant bank statements.
A ‘Payroll Activity (Summary)’ for one pay period was provided after the hearing. Extracts from the business transaction account in 2021 also reflects weekly payments of salary to ‘Chris theo’, ‘Yassmin wage’, and ‘Tony wage’.
The Tribunal has also considered the financial statements provided with the nomination application as well as to the Tribunal.
The submission provided by Mr Theoharopoulos after the hearing on 23 November 2021 stated as follows:
In reference to the projects on hand they are listed below, and are all in Special vehicles trusts being: Lt corporation charges fees payable over the construction period of between 4% and 6% and 10% establishment fee based on acquisition price. As advised in the start up stages of each project, all consultants (full time) are charged direct to the SPC and then when construction commences to Lt corporations. The reasoning for this is primarily to crystalise the costs in the case a project is sold prior to construction. At all times everyone works under Lt corporations control and only for us.
Project management agreements had been provided prior to the hearing which the applicant submits supports the income stream. The applicant has also referred to the income stream as being regular with commenced projects paying monthly. Extracts from the financial accounts have been provided reflecting an increase in sales and net profit.
A letter was also provided by Paul Bunting of Morrows Pty Ltd dated 24 November 2021. Mr Bunting stated that the applicant is the project management & administration company for a number of related Trusts and Special Purpose Vehicle (SPV) entities. He clarified that an SPV is a structure set up for the single purpose of doing one particular project and in this case property developments. The current total construction budget for the group is $91,700,000. He stated the ‘services provided to the SPV commence with the pre-construction administration and management & then move to construction administration and management. During all the stages of the projects LTDT is responsible for the management and progression of the projects. When the projects move to construction phase LTDT is also responsible for the financial payments management and approval process’.
Mr Bunting also states the following:
As at 30 June 2020 the summary shows that Leon Theoharopoulos is owed a total of $1,390,824.93 by the entities within his Group. There are amounts owing to & by Leon Theoharopoulos by the separate entities that will facilitate the repayment of the amount owed by Leon Theoharopoulos to LTDT should that entity call for the repayment of the loan from Leon Theoharopoulos.
The attached table reflects 10 separate companies forming the Group. Collectively Mr Theoharopoulos is owed approximately $3.8 million and owes the companies approximately $2.4 million. Each company either has a loan owing to or from Mr Theoharopoulos.
Mr Bunting advised that updated financial information for the 2020/2021 financial year was not available for the Group entities. A draft profit and loss and balance sheet were provided for LT Corporation Pty Ltd.
The balance sheet records the loan from Mr Theoharopoulos as an asset of approximately $1.15 million. Cross referencing this against the table provided by Mr Bunting does not provide any correlation between this figure or the characterisation of the amount as an asset. The table shows the amount of $1.18 million as a net loan owed to Leon. This should therefore be reflected as a liability and even this rests on the assumption that the same figure is being referred to, even though the amounts are different.
The actual accounts produced are only in draft form and given the significant amounts of money which are involved for the ‘Group’ the Tribunal does not consider it reasonable to rely on reports in this draft form.
The Tribunal has also considered the further evidence which was provided to it just prior to the hearing.
A letter from Simon Kelman, Managing Director of Empire Private Capital dated 10 August 2021 states the following:
My business facilities the funding for a number of the company’s development projects, we have lent the company circa $12,000,000 over the period to date. (sic)
The company and its associated entities undertake a number of projects a year, which rely on Ms. Badran’s ongoing management. We are in the process of funding a number of large developments for the company, including projects at Ryhill, VIC; Safety Beach, VIC, Maud St, Geelong. She has a vital understanding of the companies accounts and dealings and is the only person we rely upon for information.
Throughout the tenure of our relationship the company has always met its financial commitments to our funders. While the company has a modest turnover, it undertakes a number of complex projects that’s success relies upon the ongoing account management of Ms Badran. (sic)

A letter from Spigler & Schwarcz, ‘Solicitors and Consultants’, provides:
We wish to advise that both the writer and his partner Sal Spigler, through a number of corporate vehicles, are involved in development activities in Australia as well as in Greece, whereby LT Corporation Pty Ltd is the nominated entity undertaking the works on behalf of joint venturers of which Mr Leon Theoharopoulos is a partner via his own entities (other than LT Corporation Pty Ltd) and entities associated with the partners of Spigler & Schwarcz via their own corporate vehicles.
In each case, LT Corporation Pty Ltd acts as a management consultant and project administrator.
And further:
It is important to understand in business transactions associated with property development, often an expenditure of funding has to be undertaken with limited initial recourse by way of income but the expenses are constant and a requirement for the project to proceed and as such, the fact that Mr Theoharopoulos and his entity are able to meet ongoing wage and other outgoings to date, would not impinge on his ability to do so into the future over the minimum two year period referred to in the Visa application.
Please note that the value of work can be calculated at any point of time and it is only by agreement of Mr Theoharopoulos, on behalf of his entity, that no claim has been lodged with the partners at this point of time but the debt exists and is payable.
The Tribunal was provided with financial statements for the financial year as at 30 June 2017. It also received copies of the following documents:
- Project Status Report for the Werribee Mixed Use Purposes project dated August 2021;
- Project Management Agreement dated 9 July 2020 between the applicant and TALT Pty Ltd as the trustee;
- Project Management Agreement dated 27 August 2021 between the applicant and Glenhuntly Investments Pty Ltd as trustee;
- Project Management Agreement dated 21 January 2021 between the applicant and Olympic polymer holdings Pty Ltd as trustee;
- Consultancy Agreement dated 17 February 2021 between the applicant and Nine Miles Street Pty Ltd ATF Nine Miles Street Property Trust;
- Project Management Agreement dated 7 July 2020 between the applicant and 202 Dawson Street Pty Ltd as trustee;
- Project Management Agreement dated 15 July 2021 between the applicant and 1214 Thistlewaite St Pty Ltd as trustee;
- Project Management Agreement dated 4 February 2021 between the applicant and Werribee Centre Pty Ltd as trustee for the Werribee Centre Unit Trust;
- Project Status Report for 41 Warehouses Development at Moorabbin dated 16 June 2021;
- Project Status Report for 15 Dwellings Development in Rhyll Victoria dated 20 April 2021;
- Business Activity Statements for various periods from 2018 – 2020.
In an undated and unsigned submission, the applicant states:
Our business focus was originally on projects with a cost base of up to $5,000,000…This has now been increased in 2020/21 to projects with a cost bases of over $30,000,000 each for which we currently have 3 projects operating in various stages..The main driving factor for the increase is due to the support of our joint ventures’ partners form previous projects (sic)
And in conclusion:
Originally in 2016/2017, an expansion of the business was entered into to secure future work and to expand the family business. Now in 2021 many of those projects have started coming into inception and will provide a sustainable work load for Lt Corporation for the next 5 years as a minimum, by which time completed projects will be replaced with new ones.
The Tribunal finds that this statement lacks any detail or specificity about the ongoing business operations of the applicant. It is vague and lacking any evidentiary value at all.
The Tribunal was also provided with the applicant’s business transaction account for 2021. The account has an opening balance of approximately $100,000 and reflects regular payments of salary as well as business and other expenses and irregular direct credits for payments of invoices. The balance frequently reduces to less than $1,000 with the balance being topped up personally by Mr Theoharopoulos. Injections of cash are also provided by Empire Private Capital.
As noted by the delegate in its decision, the proposed nominee was making regular deposits into the trading account to support the cash flow of the applicant between April and September 2019, a portion of which was not repaid. When questioned at the hearing about this, both Mr Theoharopoulos and the proposed nominee said these deposits were made while he was travelling overseas and the deposits had to be made quickly. The parties conceded that they were in a relationship and this was part of the reason why the proposed nominee assisted in this way.
The Tribunal has difficulty with this explanation, particularly when considering it in light of the ease of online banking and electronic transfers. Even if this explanation is accepted, it still demonstrates that the cashflow of the business has been heavily dependent on constant injections of funds which are not related to the sales generated by the company. For a company that boasts simultaneous multi-million dollar projects on its books, it is an unusual way for it to manage its cash flow.
The applicant has, as noted above, provided Project Management Agreements and some photos of projects under construction, together with press releases and other information regarding the status of those projects.
Mr Theoharopoulos has attempted to explain the business as have some of the witness statements that ultimately the gain for the companies is at the end of the project. As noted by Mr Schwarz in his submission, the expenses are constant but there is limited recourse by way of income early in the projects. On a basic reading of the financial documents and business transaction account, the Tribunal is not satisfied that the applicant is financially viable. It appears to be highly speculative and heavily dependent on Mr Theoharopoulos’ personal contributions.
The latest, draft accounts demonstrate a significant increase in the applicant’s income, gross profit and net profit. The balance sheet also records a turnaround from negative equity to a positive total equity.
Despite this however, the Business Transaction Account does not reflect a healthy financial position with frequent injections of cash either from Mr Theoharopoulos or Empire Private Capital. The payment made for invoices are irregular both in timing and amount. The reality is, that without the injections by third parties the applicant would not be able to pay its bills as and when they fall due.
Furthermore, given the supposed scale of the applicant’s operations, the Tribunal would have preferred to have access to the completed financial records of the business for all the financial years it is considering.
The Tribunal has carefully considered all the financial and other information provided to it. Most of the information was provided just prior to the hearing, despite repeated requests to the applicant’s representative that it be provided at least 7 days prior to the hearing.
The overall business and financial structure of the applicant is complicated and unsteady. On a basic level, inadequate provision for wages was made in the 2016/2017 financial year, causing the Tribunal to have doubts regarding the accuracy of the financial statements. Secondly, the applicant has had a modest turnover, minimal profit and a negative balance sheet until the most recent financial year. The financial reports for the 2020/2021 financial year are incomplete and in draft form. Those reports reflect a significant increase in the profitability and the state of the balance sheet. Despite statements that projects that have been worked on are now ‘coming into inception’, the Tribunal is not convinced that this translates to the applicant being more financially stable.
Furthermore, even though the applicant has submitted that the applicant is part of a ‘Group’ entity, it is only the applicant that is designated as the sponsor for the proposed nominee. The submission from Paul Bunting notes that various amounts are owed to and by Leon Theoharopoulos by the separate entities in the Group. The bare statement that ‘There are amounts owing within the separate group entities that will facilitate the repayment of the amount owed by Leon Theoharopoulos to LTDT should that entity call for the repayment of the loan from Leon Theoharopoulos’ is vague and lacking in any detail. Without a detailed access to the accounts of those separate entities, it is impossible to assess whether they have the capacity to pay the outstanding amounts owed to the applicant.
Based on the evidence provided, both documentary and oral, the Tribunal is not satisfied that the applicant has the financial capacity to sustain the proposed nominee’s employment for at least two years.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(g) is met. Accordingly, reg 5.19(4)(f) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Michelle East
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:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2022] AATA 1050

19 January 2022

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Immigration

Administrative Law

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Statutory Construction

Procedural Fairness

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