MSR Freight Services Pty Ltd (Migration)

[2023] AATA 1192

MSR Freight Services Pty Ltd (Migration) [2023] AATA 1192 (3 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MSR Freights Services Pty Ltd

REPRESENTATIVE:  Mr Brian Kiseok Park (MARN: 0960412)

CASE NUMBER:  1925542

HOME AFFAIRS REFERENCE(S):          BCC2018/836707

MEMBER:Karen McNamara

DATE:3 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 May 2023 at 12:52pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – motel manager – position cannot by filled by citizen or permanent resident in local area – advice of regional certifying body – no evidence of genuine recruitment process – documentary and oral evidence of recruitment provided to tribunal – effects of COVID-19 pandemic on labour market and later RCB approval – owner’s health, husband’s other business and reliance on nominee – nominee’s qualifications, experience and work in position – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(C)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 August 2019, to reject the application by MSR Freights Services Pty Ltd (the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 21 February 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 two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy regulation 5.19(4)(h)(ii)( C). The delegate found the application did not provide sufficient evidence to demonstrate that 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.

5. The applicant lodged an application for review with the Tribunal on 11 September 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

6. On 27 April 2023, the applicant represented by Mr Daniel (Maheep) Singh (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Inderjeet Miglani (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1928499).

7. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Background

11. The nominating business is a motel trading as the Hi Craft Motel located at Ballina, New South Wales. Evidence before the Tribunal including ASIC records show the company was registered on 16 June 2013 and has been operating the motel since May 2014.

12. On 21 February 2018, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Motel Manager under the occupation of Hotel or Motel Manager (ANZSCO 141311). The nominated base rate of pay and guaranteed earnings are $55,000. The application identified Mr Inderjeet Miglani.

13. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

    The application is compliant: reg 5.19(4)(a)

14. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

15. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.

16. In considering whether the application for approval identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it. This evidence includes the oral evidence received at the hearing and a written submission provided to the Department dated 21 February 2018.

17. At the hearing, the applicant told the Tribunal, the need to employ the nominee to work in the nominated position is essential to the operational and business needs of the applicant’s motel accommodation business. Mr Singh told the Tribunal that he has other business interests including a restaurant and a Bar and Grill which he predominantly spends his time working in. His wife who is the owner of the motel is not well and relies upon the nominee to manage the operations of the motel. Mr Miglani has proven to be a competent and reliable employee who has managed the motel since January 2017.   

18. The Tribunal is satisfied on the information before it, that the application for approval identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control. Accordingly, the requirement in     r. 5.19(4)(a)(ii) is met.

19. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

20. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

21. The Tribunal accepts on the evidence before it that the applicant owns and operates a motel accommodation business. The business is located at Ballina, New South Wales.  Based on the material provided to the Tribunal, including financial statements, BAS returns, ASIC details, client/guest correspondence and business bank statements, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia and directly operates that business.

22. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

23. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. 

24. There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.

25. Accordingly, the requirement in r.5.19(4)(c) does not apply

    Term of employment of the visa holder: reg 5.19(4)(d)

26. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

27. In considering whether the nominee will be employed in the nominated position for at least two years, the Tribunal has considered the financial capacity of the business to pay the nominated full-time salary of $55,000 per annum to the nominee for at least two years. In making its assessment, the Tribunal has afforded weight to information before it, including the applicant’s financial statements, BAS returns, bank statements and nominee’s income statements, which show the applicant has met payroll and operating costs.

28. The Tribunal notes that the applicant’s financial statements show that the business has reported substantial trading revenue with proportionally aligned profit. The business operates with modest debt and has recorded considerable net equity and retained earnings. Submitted BAS returns, and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.

29. The Tribunal has also afforded consideration to evidence supporting the nominee has been continuously employed by the applicant since January 2017. The nominee’s income statements, and bank statements support the nominee has received regular remuneration.

30. Based on the evidence before it, the Tribunal is satisfied the applicant has demonstrated the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full-time basis for two years.

31. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

32. The Tribunal has had regard to the nominee’s most recent employment contract signed and dated by the parties on 27 June 2022, which sets out the nominee’s terms and conditions of employment. The contract stipulates the commencement date is 1 July 2022, the salary is $55,000 per annum (exclusive of superannuation) with hours of work 38 hours per week. There is no term excluding an extension of the contract and the contract stipulates a guarantee of 2 years employment.

33. The Tribunal is satisfied based on the employment contract dated 27 June 2022 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

34. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.

35. As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

36. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

37. The employment contract dated 27 June 2022, sets out the terms and conditions of employment and indicate that the nominee’s salary will be $55,000 per annum and hours of work 38 hours per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.

38. The Tribunal has received copies of the nominee’s income statements and bank statements confirming that the nominee has received regular payment of remuneration from the applicant. The Tribunal is therefore satisfied based on the evidence, that the nominee will be paid in accordance with the terms of employment.

39. The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. 

40. Accordingly, the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

41. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

42. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.

43. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

44. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

45. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

46. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

47. 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 under the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

    In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;

48. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position, are located in Ballina, New South Wales postcode 2478, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.

49. The Tribunal next considered whether there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Motel Manager under the occupation Hotel or Motel Manager (ANZSCO 141311).

50. The evidence provided to the Tribunal shows that the applicant purchased the motel in 2014. The applicant has provided oral and written submissions to the Tribunal detailing the genuine need for the position in addition to position descriptions and job advertisements indicating the objective of the role and the contribution of the position to the applicant’s business.

51. At the hearing the Tribunal discussed with the applicant the genuine need for the applicant to employ Mr Miglani as a paid employee to work in the position under the applicant’s direct control. The applicant told the Tribunal that prior to employing the nominee, the applicant employed a husband and wife to manage the motel. The position became vacant when the couple left.

52. The applicant advertised the position and was made aware of the nominee’s interest in the position through a mutual friend. The nominee submitted an application and was interviewed by the applicant and assessed for suitability. The applicant subsequently offered the position to the nominee who has now worked in the nominated position for over six years.

53. Mr Singh told the Tribunal that the motel is his wife’s business, and he owns and operates under a separate entity, an Italian Restaurant and a Bar and Grill. His wife is not well, and he concentrates on his restaurant businesses, therefore the couple are dependent upon the nominee to manage the motel operations on their behalf.

54. The Tribunal is satisfied that the material and evidence provided by the applicant, including the applicant’s oral evidence, an organisation chart, position description, and client/guest correspondence, support there is a genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s operational requirements, its size and activities, the tasks to be undertaken in the position, the nominee's experience and qualifications and employment history with the applicant.

55. The Tribunal is satisfied on the evidence before it, that on balance there is a business need for the position which supports the genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.

56. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(C) of the Regulations because the application did not demonstrate that 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.

57. The delegate noted in their decision that they had considered advice provided by the Regional Certifying Body (RCB) - Regional Development Australia, Northern Rivers NSW dated 01 May 2019 and an accompanying letter. The RCB found that that the requirement to demonstrate that the position was unable to be filled locally, was not satisfied. In a letter dated 30 April 2019, the RCB stated the following:

    ‘ Regional Development Australia Northern Rivers has assessed the application against three requirements under the Migration Regulations 5.19 (12), as outlined in Form 1404 and determined that the application does not satisfy the requirements of

    ·     The nominated position can or cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area where the nominated position exits

    This is the third application we have received for this business since 2015. In March 2018, the application with the same nominee's application was deemed unsatisfied because, at that time, two local Job Service Agencies (ETC and TURSA) were contacted regarding this position. Both JSA’ s reported that they had suitably qualified local clients who could capably fill this position.

    There were 94 job applications received for this latest nomination, of which eight had the requisite qualifications and experience to fill the role. Two of these were deemed unsuitable because "personality does not fit into the team environment”. Others were considered unsuitable because they were located outside the Ballina region.

    Based on information received, we are not satisfied that the requirement above has been met.’

1. The delegate concluded from the evidence before them, that there were eight candidates for the role who had the appropriate experience and qualifications however the nominee, an existing employee, was chosen for the position over all other candidates. The delegate noted that no evidence was provided in relation to the recruitment process such as copies of advertisements or information about the candidates other than the RCB’s advice and the submission provided in response to the Department’s invitation to comment. In the absence of documentary evidence, the delegate was unable to conclude that a genuine recruitment process was undertaken to fill the position prior to it being offered to the nominee and found the application did not demonstrate that the nominated position could not be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place.

2. The Tribunal has had the benefit of discussing with the applicant at the hearing, the local labour market and recruitment undertaken by the applicant to attract local staff, including advertising of the nominated position in March 2021.

3. The applicant has also provided to the Tribunal evidence including;

   ·Job advertisements for the position of Motel Manager posted 20 to 23 March 2021 (inclusive) on Daily Telegraph, Jora and Job Active websites;

   ·Recruitment activity statement (undated) re: March 2021 advertisements

   ·RCB approval dated 24 June 2021; and  

   ·Submission by representative to the RCB dated 31 March 2021 re: skill shortages and supporting material.

4. The Tribunal acknowledges advice from Regional Development Australia, Northern Rivers NSW contained in the Department’s file, in which it is stated ‘Discussions with a local JSA in May 2021 suggested that the owner was requesting qualifications far above the requirements of a small regional motel manager. They also suggested that pre-COVID this position could easily have been filled by a local person.’

5. The RCB form 1404 notes under reasons for supporting this nomination. “Attempts were made to find a motel manager with required qualifications but due to current COVD [sic] -derived shortages, no suitably qualified local applicant could be sourced.”

6. The Tribunal has considered the evidence before it and notes the comments made by the RCB in regard to discussions with a local employment services provider. Whilst the comments are no doubt validated, the Tribunal must turn its mind to whether the evidence before it at the time of its decision, supports the applicant’s claims that 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. In undertaking its assessment, the Tribunal notes that over five years have lapsed since the applicant lodged their application, during which the Australian Labour market has suffered adversely due to the COVID-19 pandemic.

7. Having consideration to the entirety of the evidence before it, the Tribunal is satisfied on balance that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position. The Tribunal also gives weight to the RCB’s advice dated 14 June 2021, that the position cannot be filled locally.

8. On the evidence before it, the Tribunal is therefore on balance, satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.

9. The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 141311 for the occupation Hotel or Motel Manager and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided comprehensive description of the daily duties and tasks carried out by the nominee. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the applicant’s business and operational requirements and how the tasks of Hotel or Motel Manager (as undertaken in the nominated position) are relevant to meeting these requirements.

10. Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of the occupation of Hotel or Motel Manager (ANZSCO 141311). Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.

11. The occupation of Hotel or Motel Manager (ANZSCO 141311) is referred to in ANZSCO as a skill level 2 position. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. Department records show that relevant to the position, the nominee holds a Diploma of Business and Diploma of Management attained from Imagine Education Australia Pty Ltd. The applicant additionally attained from India a Bachelor of Business Administration. The applicant has worked for the applicant for over six years in the nominated occupation.

12. Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that the nominee is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.

13. The Tribunal has before it, advice dated 14 June 2021, from the relevant RCB, RDA Northern Rivers NSW indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

14. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.

15. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Karen McNamara
    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 an identified person, as  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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).