Mamani Navroz (Migration)

Mamani Navroz (Migration) [2019] AATA 4278 (11 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mamani Navroz
CASE NUMBER:  1837311
DIBP REFERENCE(S):  BCC2017/1435825
MEMBER:Alan McMurran
DATE:11 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 11 September 2019 at 3:44pm
CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – no genuine need for employee in nominated position – position not under nominator’s direct control – applicant desires business to be autonomous contrary to the regulation – reasonable steps not taken to find Australian citizen or permanent resident for position – tasks do not correspond with ANZSCO – business operates successfully without manager on site – applicant must retain manager role under franchise agreement – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 19 December 2018, for review of a decision made by a delegate of the Minister for Immigration on 12 December 2018 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 applicant applied for approval on 20 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream. The nominee, Altaf Ramzanali Mamani, is a 37-year-old Indian citizen.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4) (h) (ii) (B) of the Regulations, The applicant appeared before the Tribunal on 9 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Imran Mamani.
The applicant’s registered migration agent represented the applicant in relation to the review and appeared by telephone from Melbourne.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Background
The applicant is an Australian citizen and a sole trader under a registered ABN.[1] The applicant is the registered owner of the business name “Westside Petroleum Somerton”, which conducts a fuel franchise business for the sale of petroleum products and a convenience store from a leased location at 1 Oxley Highway Somerton (near Tamworth) in New South Wales (“the business”).
[1] ABN 86399463656
The applicant negotiated to purchase the business from Westside Petroleum Holdings Pty Ltd (“the vendor”) in or about August 2015, and which includes a sub-lease of the site from the vendor, the head lease terminating on 4 May 2025, and subject to an option for renewal.
The applicant says that following the purchase, the applicant took up residence at the site towards the middle of 2016. The applicant explained there was a fire at the site, which required the vendor to complete repairs and renovations and had delayed his occupation and commencement of the business as the franchisee.
The applicant conducts the business pursuant to a Fuel Reselling Franchise Agreement between the vendor (“the franchisee”) and Westside Petroleum Pty Ltd (“franchisor”). The franchisee is the lessee of the freehold pursuant to the head lease and is accountable to the franchisor for the operations of the business. The applicant has assumed the responsibilities of the franchisee, since purchasing the business. The applicant has a background in the fuel industry through his previous employment, and conduct of a 7-Eleven fuel franchise in Melbourne.
The terms and conditions of the lease agreement and the fuel franchise agreement are contained in the information and documents provided by the applicant. Item 13 of the schedule to the franchise agreement identifies and names the applicant as the “person nominated by the franchisee to manage and operate the franchised operation”.[2] There is nothing in the franchise agreement, which purports to allow the applicant to delegate his responsibility as “manager” of that operation. Cl. 6.16 of the franchise agreement sets out as follows:
6.16 Manager
(a) The parties agree that the Franchised Operation must be managed by the Franchisee as an owner operator. Where the Franchisee is a company or trust, the Franchisee is to appoint a Manager. The Manager must:
(i) have a controlling interest in the Franchisee; and
(ii) be approved by the Franchisor in writing.
[2] Franchise agreement at par 1.1 (Definitions).
The Tribunal notes the business does not operate as a company or trust, and is conducted by the applicant as a sole proprietor using his ABN. Under the terms of the fuel franchise, the applicant must manage the fuel business as a sole trader. The applicant has not sought approval from the franchisor for the nominee’s employment, as “manager”, and the agreement does not appear to provide for delegation of the role where the nominee does not have any proprietary interest in the business. The business is a single operation and does not separate the fuel sales from the convenience store.
In his submissions to both the Department and the Tribunal, the applicant has referred extensively to both his personal health issues and his heavy workload from a number of other sources, and the importance of the continuation of the business for the benefit of the local community. The Tribunal notes that cl. 16.1 of the franchise agreement refers to interruption to the franchisee business as follows:
16. Interruption to Franchisee business
16.1 If the Franchisee or the Manager becomes incapable or unable to conduct or manage (as the case may be) the Franchised Operation through accident, ill-health or any other reason for a period in excess of five (5) continuous Business Days then
without limiting the Franchisor’s other rights under this Agreement, the Franchisor may at its option for such period as such incapability or inability continues but without prejudice to any right or remedy the Franchisor may have against the Franchisee pursuant to this Agreement enter into and service the Franchised Operation for and on behalf of and as the agent of the Franchisee and generally do all such things as may be required (including appointing a Manager and/or directing the Franchisee's staff) to continue the efficient running of the Franchised Operation during the absence of the Franchisee or Manager on the same terms as set out in this Agreement. The Franchisor shall not be liable in any way whatsoever to the Franchisee in relation to or arising out of anything done or not done by the Franchisor whilst operating the Franchised Operation. The Franchisee shall pay to the Franchisor all reasonable fees prescribed by the Franchisor from time to time for so continuing to carry on the Franchised Operation together with any relevant travelling, accommodation and all other expenses in connection therewith.
The Tribunal notes that pursuant to this provision, were the applicant to cease operating the business, as he submits may happen because of his current work overload and health issues, the franchisor would continue its operation by virtue of its own resources, and charge the applicant accordingly for the operational costs incurred in continuing the business.
The information provided by the applicant includes the applicant’s written job description, where the applicant states that the position is for a full-time retail manager who is able to work at the location “autonomously” and “without supervision and direction”.[3] The applicant’s proposal is to engage an employee whom the applicant does not have to manage directly, and who is “autonomous”, meaning free to act independently and not subject to direct control.[4] The applicant’s employment proposal does not distinguish between managing the fuel sales and managing the convenience store and proposes only a preference for “work experience”.
[3] Applicant’s written Position Description BCC 2017/1435825 20 April 2017 doc ID 5164445
[4] See Online Dictionary at >
Under the current organisation charts provided by the applicant, the nominator describes himself as director and owner, and identifies four part-time employees working at the business. The requirements of the subregulation 5.19 (4) (h) (ii) (B) require the applicant to demonstrate “there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control”. This phraseology is not defined in the Regulations.
As at the date of application on 20 April 2017, the regulation did not require the applicant to identify a particular nominee, the emphasis being on evidence to demonstrate all three elements, being “a genuine need” and for a “paid employee to work in the position” and “under the nominator’s direct control”. For the applicant to meet the requirement, all elements of the sub- subregulation need to be present.
The applicant’s job description includes the following:
“Skills and Qualifications expected of a Retail Manager
Diploma of Management or relevant qualification
Combination of qualification and experience is an advantage
Good communication and verbal skills
Presentable and professional appearance
Knowledge of Australian work safety standards
Self – motivated
Able to work autonomously
Good time management and initiative skills
Level of fitness
Flexible to work
Positive attitude”[5]
[5] Position Description. BCC 2017/1435825 DOC ID 5164445;
The applicant identified his preferred nominee as his brother, Altaf Mamani, a citizen of India who currently resides in India and who has not worked in the business. The applicant refers to the proposed tasks in the nominee’s role and the experience of the nominee, Altaf Mamani, in these terms[6]
“Altaf has all the above said skills, qualification and experience. He is also able to handle the work without supervision and direction. He can become an integral part of the business. He will be tremendous asset to the business and we would find it hard to replace him. This was the only person we decided to sponsor him. We do not have any doubt in his potential and wish him luck in all his endeavours.”
[6] Ibid;
The skills, qualification and experience referred to (in part) above in the statement and expected of the nominee[7] are similar in many respects to the ANZSCO recommended skill level and tasks, such as managing and motivating a team, budgeting, determining stock levels and promoting the establishment.
[7] Ibid at pp1-2
ANZSCO describes the role of retail manager as follows:
“RETAIL MANAGERS organise and control the operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
odetermining product mix, stock levels and service standards
oformulating and implementing purchasing and marketing policies, and setting prices
opromoting and advertising the establishment's goods and services
oselling goods and services to customers and advising them on product use
omaintaining records of stock levels and financial transactions
oundertaking budgeting for the establishment
ocontrolling selection, training and supervision of staff
oensuring compliance with occupational health and safety regulations[8]
[8] 1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2 26/06/2013
It is difficult for the Tribunal to place much weight on the applicant’s mere statements of intended tasks, generically aligned with a recommended skill set as described in ANZSCO. The Tribunal prefers to have regard to the facts and circumstances, including the requirements of the contractual arrangements entered into between the applicant and the franchisor, noting (as above) the information provided with the application, and the applicant’s description of the current management of those tasks.
According to the applicant, he owns seven retail fuel outlets including another Westside Petroleum outlet at Gurley, between Narrabri and Moree in New South Wales and five outlets in Melbourne. The applicant himself lives in Melbourne with his family.
In a submission to the Department dated 13 December 2018[9] , the applicant’s representative states:
“We have clearly explained the situation and the demographics of the store. Store is located on a main highway half an hour drive from the main town and it is the only store which is providing retail and fuel services in that area to the local community and travellers. Navroz Mamani has to travel on a regular basis to the site to make sure the business in (sic) running smoothly and steadily to make sure the local community does not have to travel far to shop for their basic needs. This is really challenging due to the family commitments (newborn baby), expansion of the business and also looking after other businesses in Melbourne.”
[9] T casefile at ff 280-281
The applicant submitted at the hearing that the person employed to work in the position must come from the local population of Somerton. The Somerton population comprises approximately 245 people with an average age of 43 years. The applicant submits it has been impossible to find a “local” person to fill the role of a full-time retail manager. For that reason, the applicant said he approached his brother, Altaf, to take on the role.
In discussing this issue with the applicant, the Tribunal put to him that the larger town of Tamworth with a population of approximately 60,000, was only 30 kms away and therefore “local”, and a possible source of employees, and that the requirements of the regulation did not mean the employee could only come from Somerton. The applicant maintained however that if he could not find somebody in Somerton, he would be free to engage his brother as the preferred nominee. The applicant said he had tried through word-of-mouth and advertising in local papers to find a suitable nominee but without success, saying the local population were too old (average age 43), and unwilling to work full-time, and essentially itinerant. The applicant agreed he had provided by way of information only one copy of a Gumtree advertisement placed in January 2017[10], which resulted in 6 responses, none of whom he selected.
[10] Department file DOC ID 5164449
The applicant’s submissions include comments from local customers of the store and its importance to them. The local MP also touches upon the importance to the community. The submissions from the applicant do not include any evidence that the applicant may have to close the store if he cannot employ a manager. It is running profitably. The applicant himself says that he does not wish to continue to operate the business as he has been doing. The evidence from the franchise agreement is that the franchisor would step in and operate the business itself if the applicant withdrew. The applicant’s submissions go directly to the applicant’s personal difficulties attending to the business on a regular basis, due to his other business interests, his location in Melbourne and his health and family responsibilities. There is no substantive evidence that any fears the local community may have that the business will cease is actually the case.
The applicant does not say with certainty how many days he spends at the business on a regular basis. It is clear however from the applicant’s submission that due to his other commitments, the business “is in struggling phase with no one on-site to manage the store and the staff”. The submission states that the applicant intends the nominee to live in renovated premises next to the site and it will be a huge disadvantage to the local community if he is unable to engage the manager. The applicant emphasises a “business expansion plan” which includes the business, and proposal by the applicant to purchase other businesses. At the hearing, the applicant tendered a document being a proposal to the Northern Territory government for creating 10 fuel stops on the Stuart Highway.
The applicant has provided financial information to support the viability of the business operations[11]. He has also included a detailed submission from the representative on 14 August 2019, addressing the details of the nominated position, including tasks proposed and repeating earlier submissions concerning the location of the business in New South Wales, the stresses on the applicant from running other businesses including in Melbourne, and his inability to find local staff from Somerton.
[11] Ibid at 510
The applicant also produced some medical evidence from August 2019 of diagnostic testing. This is in support of a submission that the applicant is currently “really sick”[12] and struggling due to family responsibilities in Melbourne. He also says a current staff member has recently resigned and left the business struggling. The submission says, “Recent resignation letter showing the non-serious staff thus hiring a manager from overseas will sustain the position for at least 2 to 3 years”.[13]
[12] Ibid at 456
[13] Ibid at 456
The applicant’s submission places emphasis on the local community and resources and the needs of local customers for the business to keep operating. The applicant says advertising has not been successful for the position; there is a shortage of staff, and endorsed by the local MP who has provided a supporting letter.[14]
[14] Ibid at 298 AND 393
The applicant has provided information from a number of sources and to which the Tribunal has had regard as considered below. That includes the Tribunal’s case file (Parts 1 and 2) and electronic records from the Department’s file (referred to in the footnotes as DOC ID numbers).
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 nomination approval, all the requirements must be met.
Tasks of the position genuine need for the position and training requirements 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 that:
·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 17/058) the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is:
·located in regional Australia,
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident,
·the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument,
·the occupation is applicable to the proposed employee in accordance with the specification of the occupation and
·that a regional certifying body has advised the Minister about certain matters relating to the position.

At the hearing, the applicant explained the background to his arrival in Australia in 2005, his subsequent citizenship, and his employment history principally in the fuel industry and leading to his current ownership interests in seven separate fuel supply businesses. He explained that he was a student from 2005, acquiring a Master’s degree in accounting, and then employed in different accounting roles from about 2008 until 2015. He explained that he had a desire to experience small business and purchased a butcher shop in 2013, to acquire business skills. He said he sold the shop in 2015. He also set up a company, Mamani Technologies Pty Ltd in about 2012, which he used to acquire a 7- Eleven franchise in Melbourne.
The applicant said that he decided to purchase the Somerton business, which he saw advertised, and moved to live at Somerton with his wife in 2016. He said it is about an 11 hour round trip from Melbourne by car, and too expensive for regular return flights, which cost around $500 per trip.
He said he and his wife managed the business initially on their own, before finding casual staff. He said the franchisor had set up the business, and employed its own staff from within Westside Petroleum, including a “manager”, to run the fuel outlet and store. He said there was accommodation for the manager alongside the retail outlet where he and his wife lived. No substantive particulars were available or provided as to how Westside had been running the business beforehand. The applicant said he has always found it difficult to find local staff. He said that his brother Imran, who also attended the hearing, looked after the businesses in Melbourne in his absence. The applicant said it was not until early 2017 when he advertised for a retail manager, that he determined to return to Melbourne to live. Once he left, the applicant continues to operate the business with four casual staff, essentially console operators, and managing the operation by telephone and computer online while living in Melbourne.
The applicant said he is responsible for most of the management tasks including ordering stock, particularly sensitive items such as cigarettes, and arranging deliveries on a weekly basis. He said he relies upon the staff to tell him when products are required and which he orders “as needed”. He said he currently visits the site approximately once a fortnight and is responsible for health and safety, and routine inspections for regulatory requirements such as tank security to ensure non-leakage.
The applicant was asked about the casual staff and their roles. He said that it is difficult to find staff with a long-term commitment or who will be responsible for the management tasks which he wishes to delegate. He said he wants to find a person who can run the business without supervision and “autonomously”. The Tribunal put to him that he would need consent from the franchisor to approve any management of the business by someone other than the applicant. The applicant disagreed and submitted that the only concerns of the franchisor were fuel sales, and that everything else was dependent upon him and his own decisions. He had not raised the issue with the franchisor about engaging his brother as the manager.
The applicant said that it was becoming difficult for him to continue to travel to and from Melbourne to operate the business. He said that his brother Imran was assisting him running the businesses in Melbourne, which Imran confirmed, but it was left to the applicant to run the Somerton business. He said his health was suffering and that he needed to be in Melbourne full-time with his family, and both his wife and his child were in need of health treatment and his personal support. This was in addition to the applicant’s own health problems, which although not specified by any medical diagnosis which was in evidence, he said were attributable to the long hours of work and travel involved.
The evidence of problems commuting between Somerton and Melbourne was not convincing in circumstances where the applicant has another Westside fuel retail outlet at Gurley, approximately two hours from Somerton. The applicant gave no evidence of any difficulties in running the business at Gurley, while also proposing ten fuel stops on the Stuart Highway in the Northern Territory, which presumably will also involve some period of significant travel or relocation for the applicant. The Tribunal asked questions about the financial performance of the business, and the applicant said it was trading profitably, although he felt at risk of decline if he did not find a retail manager. The balance sheet for the period ending 30 June 2018 shows the applicant drew $185,887 from the trading profits of the business in that year.[15] The Tribunal did not find the applicant’s evidence the business “might fail” convincing, in light of the financial performance provided on the available information.
Findings
[15] T file part 2 at ff 503
The Tribunal has carefully considered the evidence and submissions from the applicant. The Tribunal finds that the nominated position of retail manager is located in regional Australia as proscribed in the relevant legislative instrument[16], at Somerton in New South Wales.
[16] IMMI 16/045
The Tribunal has paid regard to the applicant’s submissions that there is a “genuine need” for the paid position. Those submissions may be summarised that:
·the position existed with the franchisor when it managed the business from the outset, providing accommodation for the manager;
·the applicant has problems commuting from Melbourne on a regular basis and he cannot continue doing so;
·the local community would suffer significantly if the retail outlet closes;
·the applicant has significant difficulties in locating suitable local Australian citizens or permanent residents to fill the role;
·the tasks align with those in the recommended ANZSCO profile;
·the applicant has advertised repeatedly and unsuccessfully locally;
·the applicant has located a nominee who can operate autonomously, subject to some training, and will be able to run the outlet as retail manager on a full-time basis with minimal supervision;
The Tribunal spent some considerable time discussing the submissions at the hearing. The Tribunal finds that it is not satisfied the applicant has established a “genuine need” for the position. It is clear that the business has been run successfully since at least early 2016, and after the applicant-commenced operation. Since early 2017, the business has operated without a retail manager on site. There is no indication from the financial information provided, that the business is declining. The evidence shows the business is highly successful and profitable, evidenced by the applicant’s personal drawings from profit. The applicant is required by the terms of his franchise agreement to retain the role of manager, and there is no evidence to show the franchisor has or will approve the applicant’s choice of manager as nominee for the position. The applicant has clearly been successful in the role himself.
The applicant has been residing in Melbourne full-time since early 2017, but there is no evidence this has affected the financial performance. The applicant has been running the business as the principal and manager through visiting the site regularly and with online and telephone communications. On his evidence, these processes have been successful, although personally stressful from a logistics standpoint because of the distance to travel.
The evidence from the applicant is that he will no longer play a direct role in the management of the business, if he finds a suitable employee. It is a requirement however of the sub subregulation that the position must be under the nominator’s direct control, meaning under his personal supervision. Given the number of businesses in which the applicant is involved, and the fact he desires the business to be “autonomous” and in which he does not play a direct role is contrary to the intent and purpose of the regulation. The fact the applicant intends to embark on further significant investments unrelated to the business, supports the view he will not be available to personally supervise the business. The Tribunal put to him that he was primarily concerned to “step back” to preserve his health, support his family and move on to other ventures. The applicant agreed, saying that he was comfortable in doing so because the nominee was “family” and a person whom he could trust to manage the business without him.
The Tribunal was further not satisfied that the applicant had taken steps to find an Australian citizen or permanent resident, living in the same local area, not just at Somerton. The only evidence presented of an advertisement, was a Gumtree placement in January 2017, seeking a retail manager who has some experience (“preferable”) and “can travel to other stores when required”. The Tribunal put to the applicant that the position could not be “genuine” if the person would work wherever the applicant requested, and was not required full-time at Somerton. The applicant was unable to say when and how this might occur and the Tribunal was left with the impression the applicant had either not thought the matter through, or was genuinely intending to use the nominee in whatever role he felt appropriate at the time, regardless of whether it was located at Somerton.
For these reasons, the Tribunal was not satisfied the applicant had established a genuine need for the nominator to employee a paid employee to work in the position of retail manager under the nominator’s direct control.
The Tribunal also considered the tasks proposed for the employee and when asked about those tasks in the hearing, the applicant confirmed that the applicant himself would still perform the majority of the tasks, such as safety inspections for environmental reasons, accounting and ordering and liaising with suppliers. There was no evidence presented to suggest the nominee identified (or in general) would be required to undertake those tasks, although the applicant said he would be involved in training. The role as described by the applicant seems more aligned with a customer service manager than a retail manager.
The Tribunal has noted the concerns of the local residents whose evidence appeared by video in the applicant’s documents, to the effect that the retail store might no longer continue to operate. As indicated, however there was no evidence that the applicant was intending to close the store or terminate his franchise arrangement, which in any event provides for the franchisor to independently step in and continue its operation.
Considering the evidence as a whole, the Tribunal finds it is not satisfied that the applicant has demonstrated a genuine need for the nominator to employ a paid employee to work in the position of retail manager under the nominator’s direct control. The Tribunal finds it is not satisfied that an Australian citizen or permanent resident living in the same local area cannot fill the position. The tribunal is not satisfied that the tasks as described by the applicant correspond to the tasks of an occupation specified by the Minister in the relevant instrument[17] and are aligned to the position of “retail manager”. Accordingly, the requirements of r.5.19 (4)(h) are not met.
[17] Immi 17/058
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 the 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.
Alan McMurran
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).

[2019] AATA 4278

11 September 2019

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Appeal