Melbourne IE Concreting Pty Ltd (Migration)

Melbourne IE Concreting Pty Ltd (Migration) [2022] AATA 3128 (7 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Melbourne IE Concreting Pty Ltd
REPRESENTATIVE:  Ms Latifa Al Haouli (MARN: 1175724)
CASE NUMBER:  1915206
HOME AFFAIRS REFERENCE(S):          BCC2018/3007817
MEMBER:Warren Stooke AM
DATE:7 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 7 September at 11:45am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – welder – tasks of position – no response to tribunal’s invitation to provide information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(3)(b), (4), (9)(j), (10)(a)
CASE
Hasran v MIAC [2010] FCAFC 40
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 25 May 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 10 August 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3) and 5.19(4) of the Regulations because in the absence of any evidence to demonstrate that the tasks to be performed in the position will correspond to the tasks of an occupation specified by the Minister in a legislative Instrument, the delegate was not satisfied that the nomination meets 5.19(10)(a). As paragraph 5.19(10)(a) is not met and therefore the nomination does not meet subregulation 5.19(10) it is a consequence that paragraph 5.19(9)(j) is not met. As the nomination does not meet paragraphs 5.19(9)(a), 5.19(9)(d), 5.19(9)(e), 5.19(9)(f), 5.19(9)(h) and 5.19(9)(j), therefore subregulation 5.19(9) is not met. Consequently, paragraph 5.19(4)(f) is not met and the nominator does not meet subregulation 5.19(4).
On 5 July 2022 the Tribunal corresponded with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position with a response required by 19 July 2022. As at the date of decision, the applicant has not provided the information sought by the Tribunal.
The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The applicant was represented in relation to the review.
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 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).
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.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
The applicant provided the Department with a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1). This document was dated 10 August 2018.
Whilst the applicant provided the Department with a stated position that contended a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, in the absence of a response to the request for further contemporary information, addressed in the Tribunal correspondence of 5 July 2022, the Tribunal is not satisfied that the applicant has provided sufficient evidence to support the need for the position of Welder (First Class) – ANZSCO Code: 322313 under the direct control of the business owner.
Further, the applicant has not provided a schedule of duties pertaining to the position of Welder (First Class) – ANZSCO Code: 322313 and in the absence of additional information concerning the duties of the nominee, the Tribunal is not in a position to assess the nominee’s role in the context of the overall business operation and how the position interacts with the owner and other employee positions.
In addition, the applicant has not provided ATO taxation return information to the Department or the Tribunal for any financial year prior to or subsequent to application that would identify that the business was operating with a profit and is making wage and salary payments to the nominee and contributing to a superannuation fund the statutory payments required to be made by the business in relation to the nominee. As such, the Tribunal is not in a position to assess the financial capacity of the business to support the employment of the nominee, including whether the nominee is currently employed.
Accordingly, the requirement in r.5.19(4)(a) is not 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.
Regulation 5.19(4)(b) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal is not aware of any adverse information before the Department or the Tribunal pertaining to the applicant.
Accordingly, the requirements of r.5.19(4)(b) are met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
The applicant has not provided the Department or the Tribunal with a copy of a contract of employment for the nominee. As such, the Tribunal is not satisfied that the applicant has complied with the provisions of the Fair Work Act 2009 and other statutory obligations.
The applicant has not provided the Tribunal with evidence that the nominee has been provided with a Fair Work Information Statement at the time of employment. As such, the Tribunal is not satisfied that the applicant has complied with their legislative obligations.
Given the above findings, the Tribunal is not satisfied that reg 5.19(4)(d) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
On 5 July 2022, the Tribunal requested the applicant to provide the following information about the applicant directly operating an active and lawful business in Australia, including its financial circumstances; training contributions and local job advertisements for the position:
1. Information about the identity of any person authorised to speak and make
decisions on behalf of the applicant;
§If the applicant is a company or registered business, an ASIC
company or business name extract ( If the applicant is a company or registered business, current and historical
information about its owners or office holders’ registration details;
§An ASIC current and historical extract ( Information about the applicant directly operating an active and lawful business
in Australia, including its financial circumstances;
§The applicant’s lodged tax returns for the last two full financial years,
business activity statements that have been lodged with the ATO for
the last 24 months and financial statements prepared in accordance
with Australian accounting standards, including profit and loss
statements and balance sheets, for the most recent two financial
years.
4. Information about the applicant’s current organisational structure and where the
nominated position sits in relation to that structure;
§An organisational structure chart that includes all of the applicant’s
current and proposed employees, their position title/duties and their
immigration status (ie. Australian citizen, permanent resident or
temporary visa holder).
5. Information about the roles and duties of the nominated position and how they
correspond to the nominated occupation’s position description in ANZSCO;
§Job descriptions, work samples, emails, correspondence and other
examples of the daily tasks performed in the nominated position, and
also the nominated occupation’s position description in ANZSCO (go
to and type the
nominated occupation’s 6 digit ANZSCO code number into the
‘Search’ function).
6. If the position requires a licence or registration of a particular kind, or
membership of a particular professional body, information about whether or not
the nominee holds that licence, registration or membership;
§a copy of a valid and current licence, registration or professional
body membership held by the nominee.
7. Information about the terms and conditions of employment in the nominated
position, including whether they are more or less favourable than those provided
for an Australian citizen or permanent residence performing equivalent work in
the same workplace at the same location, and whether the nominee will be
employed on a full time basis for at least 2 years with terms and conditions not
expressly excluding the possibility of extension;
§A current employment contract in respect of the nominee or letter of
engagement that complies with relevant awards for the nominated
position (if any).
8. If the nominated position is not located in regional Australia and the applicant
has paid the non-regional position application fee, information about:
a. the need to employ the nominee in the nominated position; AND
b. the applicant’s business operating for:
i. at least 12 months - its recent training expenditure; OR
ii. less than 12 months - its plan for future training expenditure
§Invoices or contracts for employee training, a training program that
includes a course outline, attendance and identifies increased work
competencies, or records of investment in certain industry training
funds or recognised industry bodies.
9. If the nominated position is located in regional Australia, information about:
a. the need to employ the nominee in the nominated position and why the
position cannot be filled by an Australian citizen or permanent resident
living in the same local area; AND
b. whether a specified Regional Certifying Body located in the same State or
Territory as the nominated position has provided advice that:
i. the terms and conditions of employment are no less favourable than
those provided to Australian citizens or permanent residents
performing equivalent work in the same workplace; AND
ii. there is a genuine need to employ the nominated person as a paid
employee to work in the nominated position under the applicant’s
direct control; AND
iii. the position cannot be filled by an Australian citizen or permanent
resident living in the same area;
§Local job advertisements for the nominated position that were not
successfully filled, and the Regional Certifying Body’s certificate
issued to the applicant in respect of this position.
10. Information about whether the applicant has been subject to monitoring by the
Department and, if relevant, the outcome of the monitoring audit;
11. Information about whether the applicant has been the subject of any
investigation about a possible contravention of the law.”
In the absence of any response from the applicant, the Tribunal is not satisfied, without the provision of ATO returns; local advertising of the position filled and advice concerning the contributions to an approved superannuation fund; that the applicant is actively and lawfully operating as a business in Australia in accordance with r.5.19(4)(b).
Accordingly, the requirement in r.5.19(4)(b) is not met.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(a) is met. Accordingly, reg 5.19(4)(f) is not met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
The applicant has not provided sufficient evidence to the Tribunal to verify that the nominated position is engaged for the purposes of labour hire or otherwise.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(b) is met. Accordingly, reg 5.19(4)(f) is not met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
In the absence of evidence to support the employment of the nominee, the position description, qualifications and the financial capacity of the business to support employment and provide at least 2 years employment, the Tribunal is not satisfied that the applicant has met the required criteria.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(c) is met. Accordingly, reg 5.19(4)(f) is not 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.

In the absence of evidence to support the employment of the nominee, the position description, qualifications and the financial capacity of the business to support employment and provide at least 2 years employment, the Tribunal is not satisfied that the applicant has met the required criteria.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(e), reg 5.19(9)(f) and reg 5.19(9)(g) have been met. Accordingly, reg 5.19(4)(f) is not met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
In the absence of evidence to support the employment of the nominee, the position description, qualifications and the financial capacity of the business to support employment and provide at least 2 years employment, the Tribunal is not satisfied that the applicant has met the required criteria.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(i) is met. Accordingly, reg 5.19(4)(f) is not met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 186 visa.
Regulation 5.19(10) requires that 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 made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument.
Further, for nominations made before 12 August 2018, reg 5.19(10)(c) requires that certain specified training requirements are met.
In the absence of evidence to support the employment of the nominee, the position description, qualifications and the financial capacity of the business to support employment and provide at least 2 years employment, together with information pertaining to training, the Tribunal is not satisfied that the applicant has met the required criteria.
Given the above findings, the Tribunal is not satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) and reg 5.19(4)(f) are not met.
Given the above findings, the Tribunal is not satisfied that reg 5.19(12)(c) is met. Accordingly, reg 5.19(9)(j) and reg 5.19(4)(f) are 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.
Warren Stooke AM
Member

Attachment – extracts from the migration regulations 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument;
(c)either:
(i)the nominator’s business has operated for at least 12 months, and the nominator fulfilled the requirements for the training of Australian citizens and Australian permanent residents that are specified in a legislative instrument made by the Minister for the purposes of this subparagraph; or
(ii)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for fulfilling the requirements specified in the instrument mentioned in subparagraph (i).
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2022] AATA 3128

7 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction