MYINSTALIKES.COM PTY. LTD. (Migration)

MYINSTALIKES.COM PTY. LTD. (Migration) [2022] AATA 3121 (15 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MYINSTALIKES.COM PTY. LTD.
REPRESENTATIVE:  Mrs Betty Zhang (MARN: 0964385)
CASE NUMBER:  1913203
HOME AFFAIRS REFERENCE(S):          BCC2016/2793910
MEMBER:Jane Bell
DATE:15 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 15 July 2022 at 3:48pm

CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Business Analyst Management Consultant – application is compliant – tasks performed in the nominated position correspond to the tasks of the occupation specified in the ANZSCO– nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR, 360
Migration Regulations 1994, rr 1.13, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 23 August 2016. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the evidence failed to demonstrate that the applicant had the financial capacity to meet all employment obligations in respect of the nominee on a full-time basis for at least the next 2 years.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
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
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.
The application is compliant: reg 5.19(4)(a)
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 a paid employee to work in the position under their direct control.
On the basis of information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved online form, that the prescribed fee was paid and that the relevant written certification has been provided as part of the application that it had not engaged in conduct that contravened s.245AR(1) of the Act.
The Tribunal is also satisfied on the evidence in the Department’s file that the application for approval identified a need to employ Ms Yao Wang as a paid employee, to work in the position under the applicant’s direct control.
There is documentary evidence that the nominee is working under the nominator’s direct control including an employment contract to work in the nominated position as a paid employee dated 8 August 2016 between the nominator and the nominee which is signed by the nominee and a director of the nominator, as well as an Organisational Chart showing the nominee reporting directly to the director.
Furthermore, the Tribunal has a copy of a genuineness letter from the director of the nominator outlining the nature of the business and the genuine need to employ a Business Analyst.
Therefore, the Tribunal is satisfied that there is sufficient evidence that the nomination identifies a need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The nominator runs a social media and marketing business. It is located at 18-20 Ashended Street, Shepparton, VIC 3630.
The Tribunal has current information as evidence that the nominator is actively and lawfully operating a business in Australia and directly operates that business including:
·ABN current look up, dated 23 June 2022;
·ABN historical look up, dated 23 June 2022;
·ASIC search dated 23 June 2022;
·Financial viability:
oATO Business Activity Statements for April 2020 to March 2022;
oProfit and loss statement year ended 30 June 2021;
oProfit and loss statement year ended 30 June 2016;
oProfit and loss statement year ended 30 June 2017;
oCompany Tax return dated 1 July 2020 - 30 June 2021;
oCompany Tax Return dated 1 July 2019 - 30 June 2020;
oCertificate of currency dated 1 July 2021 - 30 June 2022;
oNominee Payslips dated from 26 August 2019 to December 2020;
oNominee Payslips dated from 27 August 2020 to 27 June 2021; and
oNominee Payslips dated from July 2021 to May 2022.
The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
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.
The nominator’s business involves providing social media and marketing services and there is nothing in either the Department or Tribunal’s file to indicate that the nominator’s business activities relate to the hiring of labour for any other unrelated businesses.
Therefore, the Tribunal is satisfied that the nominator’s business activities do not involve labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
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.
The Tribunal notes that the Department was not satisfied that this criterion was met, because the nominator had not demonstrated that it had the financial capacity to pay the nominee’s original salary plus superannuation and had not demonstrated how it could provide 2 years of full-time employment to the nominee in the nominated position.
Ms Yao Wang entered into an Employment Agreement on 8 August 2016. There is evidence that the nominee has worked continuously in the business, in the same role since at least August 2019 and still works in the business as evidenced by her Employment Agreement, and payslips for 2019, 2020, 2021 and up to May 2022 showing salary payments from the nominator to the nominee as well as receipt of these payments in her CBA bank account statements.
The Tribunal notes that the nominee’s original Employment Agreement dated 8 August 2016 provided for a salary of $55,000 per annum plus superannuation. The Tribunal notes that the payslips for 2022, up to May 2022, show salary payments from the nominator to the nominee consistently stating that the nominee’s base pay is $55,000 per annum plus superannuation.
The Tribunal has considered evidence contained in the Department’s file together with recent additional documentary evidence provided by the nominator to the Tribunal regarding its financial capacity, including:
·    Nominee’s Employment Agreement dated 8 August 2016;
·    ATO Business Activity Statements for April 2020 to March 2022;
·    Profit and loss statement year ended 30 June 2021;
·    Profit and loss statement year ended 30 June 2016;
·    Profit and loss statement year ended 30 June 2017;
·    Company Tax return dated 1 July 2020 - 30 June 2021;
·    Company Tax Return dated 1 July 2019 - 30 June 2020;
·    Certificate of Currency dated 1 July 2021 - 30 June 2022;
·    Nominee Payslips dated from 26 August 2019 to December 2020;
·    Nominee Payslips dated from 27 August 2020 to 27 June 2021; and
·    Nominee Payslips dated from July 2021 to May 2022.
After reviewing the above documents, particularly recent 2021 and 2020 Profit and Loss Statements, Balance Sheets and ATO Business Activity Statements for 2022, the Tribunal is satisfied that the business is profitable. The Tribunal is satisfied that the business has traded successfully during the COVID-19 pandemic and has not been affected by the pandemic due to its regional location.
The total sales from trading were $150,103 in 2021 and $329,172 in 2020 and net profit increased in 2021 after all expenses have been paid including wages, superannuation and WorkCover. The Tribunal is further satisfied that the nominator’s wage payments clearly exceeded the nominee’s salary for the last 2 financial years as evidenced by the financial statements for the years ending 2020 and 2021 and the ATO Business Activity Statements provided from April 2020 until March 2022, which is further evidence that the nominator has been paying the nominee’s full-time salary during her entire employment with the nominator.
Based on the above documentary evidence provided on behalf of the nominator, the Tribunal finds that the nominator remains financially capable of continuing to employ the nominee in her full-time position on a salary of $55,000 per annum plus superannuation for at least 2 years.
Furthermore, based on a review of the nominee’s latest Employment Agreement dated 8 August 2016, the Tribunal finds that the terms and conditions of the nominee’s employment do not and will not expressly exclude the possibility of extending the period of employment.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
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.
The Tribunal has evidence before it including an Organisational Chart, and is satisfied that there are no Australian citizens or permanent residents performing equivalent work as the nominee with the nominator.
The nominee’s latest payslips throughout 2022 indicate that the nominee is receiving a salary of $55,000 per annum plus superannuation. The Tribunal has information before it, including market salary rates for Business Analysts and advertisements for comparable full- time jobs placed by other businesses as well as salary surveys. An Indeed salary survey states that the average salary for a Business Analyst in Shepparton is $64,059 per annum as at 14 July 2022. A Payscale salary survey states that the average salary for a Business Analyst in Australia is between $58,000 and $112,000 per annum. The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates for a Business Analyst in the same location in Shepparton, Victoria.
The Tribunal is satisfied that the nominee’s latest Employment Agreement dated 6 August 2016 has standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Cth) and the National Employment Standards.
Given the above, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that 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. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
The Tribunal has reviewed the Department’s records and has found no current information to indicate that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
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.
The Tribunal has information from the Fair Work Ombudsman stating that there are no current records of investigations that have resulted in the application of an enforcement tool against the nominator.
There is nothing in the Department’s records to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in Victoria in which it operates a business and employs staff.
The Tribunal is satisfied 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.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 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, 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 a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant can choose to meet either reg 5.19(4)(h)(i) or reg 5.19(4)(h)(ii) above.
The Tribunal notes that the applicant sought to satisfy the requirements of the second dot point at the time it made its nomination, on the basis that the position and the applicant’s business were located in regional Australia.
The Tribunal has considered the criteria set out in reg 5.19(4)(h)(ii) below. All of the provisions must be met.
Position located in regional Australia: regs 5.19(4)(h)(ii)(A) and (E)
The Tribunal is satisfied that the nominated position and the applicant’s business are located in regional Australia at 18-20 Ashenden Street, Shepparton, VIC, 3630 which is the place specified in the nomination application.
Accordingly, the Tribunal finds that the nominated position and the business are located in regional Australia and therefore the requirements in regs 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need to employ a paid employee to work in the position under the nominator’s direct control: reg 5.19(4)(h)(ii)(B)
To address the requirement that there is a genuine need for the paid position under the nominator’s direct control, the applicant provided documentary evidence to the Tribunal about the business and the growth of the business since its establishment.
The nominator was established as an incorporated business on 22 May 2013, operating as a multi-level social media company. The company creates a social network that allows individuals, companies and other organisations to view, create and share information, ideas, and other forms of expression and communications in the social media industry. Its goal is to create an opportunity for the community to express itself and increase communications between individuals.
Some common features of the social media network include user generated content such as posting comments and updates, and uploading photos or videos but it is also used to promote awareness through advertisements. It is accessible on different sources of technology including computer, laptops, smartphones and tablets. MyInstaLikes.Com Pty. Ltd. introduces changes to communication between business, organisations, communities and individuals. It is also an effective communications and marketing tool. MyInstaLikes.Com Pty. Ltd. uses its social media platforms to promote other organisations’ products or services, including not-for-profit and government organisations.
The director provided a genuineness letter outlining that MyInstaLikes.Com Pty. Ltd operates in the highly competitive social media industry, and that the company’s business activities in social media and marketing services are heavily reliant on the accuracy and efficiency of its business processes and employee productivity as well as the consistent, high quality of its services. Furthermore, the company’s success largely hinges on its ability to create, maintain and promulgate a good brand image and reputation for producing accurate and timely results. A lack of accuracy or efficiency in the firm’s operations and processes would have a devastating effect on the company as it could potentially mean both missed business opportunities and a loss of customer loyalty affecting business growth. Following user and customer trends is an important aspect of the social media industry. If there is an inefficient business system, the company may be behind in terms of obtaining information about, and researching, current trends, which will significantly tarnish the company’s reputation.
The director states that given the highly competitive, dynamic and perpetually changing industry involvement in marketing activities, it is imperative that the company keeps on top of its workload, and in step with developments within its fields of expertise. He states that it requires a dedicated Business Analyst to perform relevant industry research, report on their findings, maintain an up to date knowledgebase, and collaborate with management to develop and implement business systems and policies to maximise company and staff efficiency and productivity, as well as to maintain a solid and consistent consumer base.

As a Business Analyst, Ms Yao Wang has worked in a full- time position for several years, and she has continued to be responsible for researching and reporting on any new developments within the company’s areas of expertise as well as current trends within the market; analysing the company’s current operations; developing and implementing new business systems designed to target any areas of the business which require improvement and maintaining an up-to-date knowledgebase, particularly in relation to current financial trends in the market as well as within the global financial context.
The Tribunal accepts that there is no other full-time Business Analyst presently employed by the nominator and that the position of Business Analyst fits within the nature, size and scope of the nominating business.
The organisational structure, as seen in the Organisational Chart, confirms that the position continues to fit into the nominator’s business activity and that the nominee is working under the direct control of the director of the nominator. There is no one else performing the same role in the business.
The evidence, including a statement from the director of the business, suggests that there is an ongoing genuine need to employ the nominee.
The Tribunal accepts that there is a general shortage of Business Analysts with the nominee’s skills and experience in regional Victoria and that Business Analysts are hard to attract to rural communities on a permanent basis. The nominee would be very difficult to replace and consequently the business would suffer.
Based on the evidence including the latest Employment Agreement to work in the nominated position as a paid employee dated 8 August 2016, between the nominator and the nominee, which is signed by one of the directors of the nominator, and the fact that the nominee has been employed in the nominated position for many years, the Tribunal is satisfied that the applicant has a genuine need for the paid position, and that she is working under the applicant’s direct control.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Position cannot be filled by an Australian citizen/permanent resident living in the same local area: reg 5.19(4)(h)(ii)(C)
The Tribunal accepts evidence that the nominator advertised the job vacancy for the position of Business Analyst in 2016. The nominee was the only suitably skilled, qualified and experienced person who applied for the position.
The applicant subsequently applied to the Department of Economic Development, Jobs, Transport and Resources in Shepparton, which is a Regional Certifying Body (RCB), stating the difficulty involved in recruiting a full time Business Analyst and seeking a certificate that the nominated position could not be filled by an Australian employee. On 5 January 2017, the nominator received approval from the Department of Economic Development, Jobs, Transport and Resources RCB.
Based on the above evidence on the labour market testing undertaken in 2016 by the nominator, and the fact the applicant’s efforts to employ a Business Analyst in the area failed to find a suitable candidate from the local labour market for the position, the Tribunal is satisfied that the applicant has been unable to fill the nominated position with a locally resident Australian citizen or permanent resident. Furthermore, the fact that the nominated position could not be filled by an Australian employee was also certified by the RCB on 5 January 2017, and recent evidence has been provided that there has not been any change in the employment circumstances for Business Analysts in the regional area since 2017. As a result, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident living in the same local area.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(C) are met.
Tasks correspond to tasks of an occupation specified in an instrument: reg 5.19(4)(h)(ii)(D)
The nominated position duties, as listed by the nominator in its Position Description provided to the Tribunal are as follows:
Key responsibilities and tasks of the Business Analyst:
The position of Full-Time Business Analyst will include, but is not limited to, performance of the following tasks:
- Assisting the organisation in the development and review of business objectives and strategies in relation to work flow and resource allocation to maximize business performance and profitability;
- Identifying areas of improvement and addressing organizational issues within the organisation and amongst their staff by formulating solutions to address the issues;
- Advising the organisation’s management personnel on the effectiveness of their current business systems and improvements that may be implemented to improve company efficiency and staff productivity;
- Evaluating financial data on the client companies’ business performance, company funding and resource allocation to assist in the development and review of business financial objectives and investment strategies to improve company productivity and turnover;
- Assisting the organisation in the development of marketing strategies to promote their brand and raise their company profile, in conjunction with their Marketing Manager;
- Advising the organisation on budgetary matters associated with the suggested improvements;
- Making recommendations for change in relation to work flow charts, manuals and job descriptions to improve the organisation’s efficiency and staff productivity, as required;
- Reporting findings to the organisation’s management personnel;
- Reporting regularly to the Principal of the organisation in relation to project status and progress;
- Developing strategies to maintain and boost the organisation’s reputation and goodwill for the purposes of promoting increasing consumption amongst existing clients;
- Maintaining good business relationships with clients, suppliers, and other stakeholders; and
- Sourcing new clients and business opportunities amongst existing and start-up companies in the area through effective networking.
To be the successful candidate, the applicant must meet the following requirements:
- Bachelor Degree or higher qualification; or
- At least five years of relevant experience;
- In depth knowledge of business systems and structures;
- Awareness of the global economy and current market trends;
- Excellent interpersonal and communication skills;
- Meticulous attention to detail
- Strong analytical, research and reporting skills;
- Ability to work independently and with minimal supervision;
- Strong work ethic and team-oriented focus;
- Ability to set priorities appropriately when managing multiple projects with competing Timelines;
- Intermediate to advanced proficiency in Microsoft Office Suite; and
- Strong organizational skills.9
1320Created on 23/06/2022 02:53:36
The ANZSCO unit group description for the occupation of Business Analyst Management Consultant is listed in the relevant instrument.
The tasks listed on ANZSCO 224711 are:
- assisting and encouraging the development of objectives, strategies and plans aimed at achieving optimal customer experience and satisfaction and the effective use of organisations' resources and capabilities
- identifying business and organisational gaps and opportunities through application of continuous improvement and change methodologies
- analysing and evaluating current systems, capabilities and structures
- advising clients on recommendations based on analysis of current-state gaps to provide solutions to organisational problems
- preparing and recommending proposals to revise methods and procedures, alter work flows, redefine job functions and support organisational innovation and improvements
- assisting in implementing approved recommendations
- providing coaching and mentoring to individuals and teams to build specific capabilities
The Position Description provided to the Tribunal demonstrates that the tasks and required skill level are commensurate with the occupation of Business Analyst Management Consultant, which, according to ANZSCO 224711, assists organisations to achieve greater efficiency and solve organisational problems.
The evidence confirms that the nominee’s duties include assisting and encouraging the development of strategies and plans aimed at achieving optimal customer experience and satisfaction and the effective use of the organisations' resources and capabilities, as well as analysing and evaluating current systems, capabilities and structures. The role also involves researching and reporting on any new developments within the company’s areas of expertise as well as current trends within the market; analysing the company’s current operations; developing and implementing new business systems designed to target any areas of the business which require improvement and maintaining an up-to-date knowledgebase, particularly in relation to current financial trends in the market as well as within the global financial context.
Based on the evidence, including the Position Description provided by the nominator, the Tribunal is satisfied that the tasks performed in the nominated position correspond to the tasks of the occupation specified in the ANZSCO occupation of Business Analyst Management Consultant (ANZSCO code 224711).
Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) are met.
The occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation: reg 5.19(4)(ii)(DA);
The Tribunal is satisfied that the nominated occupation relates to the nominee specified in the nomination application. Furthermore, the Tribunal is satisfied that there are no additional specifications made in the relevant instrument with respect to the occupation to be performed in the position.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(DA) are met.
Regional Certifying Body advice about matters specified in reg 5.19(4)(e), reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C): reg 5.19(4)(h)(ii)(F)
The Tribunal is satisfied by the certificate on the Department’s file that the relevant Regional Certifying Body, the Department of Economic Development and Jobs, Transport and Resources certified on 5 January 2017, that there was a need for a paid employee in the nominated position, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment for the nominated position were no less favourable than those that would be or were being provided to an Australian employee performing equivalent work in the same workplace at the same location and that there had not been any change in the employment circumstances for Business Analyst Management Consultant in the regional area since 2017.
Accordingly, the Tribunal finds that the requirements of reg 5.19(4)(h)(ii)(F) are met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Jane Bell
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).

[2022] AATA 3121

15 July 2022

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness

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