NRIT SOLUTIONS PTY. LTD (Migration)

NRIT SOLUTIONS PTY. LTD (Migration) [2024] AATA 1595 (25 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NRIT SOLUTIONS PTY. LTD
CASE NUMBER:  2005048
HOME AFFAIRS REFERENCE(S):          BCC2019/5736850
MEMBER:Karen McNamara
DATE:25 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 25 March 2024 at 12:46pm
CATCHWORDS
MIGRATION – nomination – Direct Entry stream – ICT Business Development Manager – Tribunal declined to postpone the applicant’s hearing nomination – had not been certified by a Regional Certifying Body – applicant has not provided evidence of obtaining Regional Certifying Body advice – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR, 360
Migration Regulations 1994, r 5.19
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 26 February 2020, to reject the application by NRIT Solutions Pty Ltd for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
On 13 November 2019, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Business Development Manager under the occupation of ICT Business Development Manager) (ANZSCO 225212). The nominated annual market salary rate and guaranteed earnings are $55,000 per annum. The application identified Ms Sahana Kanjula (the nominee). The stated location of the position is Franklin ACT 2913.
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 applicant has provided a copy of the delegate’s decision to the Tribunal, which records on 26 February 2020, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(12)(f) of the Regulations. The delegate noted that despite requests by the Department to the applicant, to provide evidence of requesting/obtaining advice from a relevant Regional Certifying Body (RCB) located in the same State or Territory as the location of the position, the applicant did not provide this information. The delegate further noted that the applicant declared in their nomination application form that this nomination had not been certified by a Regional Certifying Body.
Information provided to the Tribunal.
The applicant lodged an application for review with the Tribunal on 13 March 2020. The review application was accompanied by a copy of the primary decision record and copies of passport biodata pages for the nominee Ms Sahana Kanjula and secondary applicants Mr Rajaji Ramanadha Babu Gogineni and Mr Arun Gogineni.
On 13 July 2023, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient Mr Rudra Kottu), requesting the applicant to provide by 27 July 2023, updated and current information that would assist to determine whether the criteria in rr. 5.19(4) & (9) of the Regulations were met.
On 25 July 2023, Mr Kottu (referred herewith to as the applicant) requested an extension of time stating as follows;
“…May I earnestly request you to grant us an extension of the deadline that you have set for the submission of the documents?
I am not in Australia and have been in India for the past over 45 days on important business and personal matters.
I attach evidence of my travel in the form of Boarding Passes when I came to India.
As it would take me a little more time after returning to Australia to submit the documents to you, I would be grateful if you were to kindly extend this deadline till the end of September or any date after that month.
I do hope that this request does not cause major inconvenience, and that you are able to accord this request because of the practical circumstances.
I will, meanwhile, aim to expedite by return to Australia…”[1]
[1] Prepared and transcribed as provided by applicant.
On 28 July 2023, the Tribunal granted the applicant an extension of time to 21 September 2023, to respond to the Tribunal’s invitation to provide information in support of their application.
On 21 September 2023, the applicant provided to the Tribunal the following:
·Proposed Contract of employment (nominee)
·Job Description and Personal Specification (Business Development Manager (ICT)
·Business Plan (NRIT Solutions)
The applicant’s covering email stated “…I am now back in Australia but have been unable to assemble all the documents that were asked of me in the format and sequence that was suggested within the date you set for it.
May I please request a further four weeks extension of the date by when I should reach the whole set to you? I apologize for any related inconvenience…”
On 29 September 2023, the Tribunal wrote to the applicant noting that because information had been provided by the stipulated time of 21 September 2023, it was not necessary for the Tribunal to grant a further extension of time. The Tribunal additionally noted that if the applicant wished to provide any further information in support of the review, he should do so as soon as possible.
On 5 January 2024, the Tribunal (differently constituted) invited the applicant under s.360 of the Migration Act 1958 to appear before the Tribunal via video conference, on 25 January 2024 at 9:00am. The invitation requested the applicant to provide all documents intended to rely on to support the applicant’s case by 18 January 2024. The invitation further noted “The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in NRIT SOLUTIONS PTY. LTD's circumstances, in providing documents and preparing for the hearing.”
On 8 January 2024, the Tribunal wrote to the applicant advising that a scheduled test call was arranged for 18 January 2024 at 15:00pm[sic]
On 11 January 2024, the applicant wrote to the Tribunal via email advising that due to prebooked travel with family he was seeking to postpone the hearing to a later date. The applicant provided evidence of said travel bookings.
On 17 January 2024, the applicant wrote to the Tribunal in regard to the Tribunal’s correspondence of 8 January 2024 regarding the scheduled test call. The applicant noted that he had requested a postponement of the hearing scheduled for 25 January 2024. Pending the decision of the Member as to the postponement request, the applicant suggested it may be more appropriate to conduct the test closer to a revised hearing date.
On the 19 January 2024, the Tribunal (differently constituted) agreed to the applicant’s postponement request and invited the review applicant under s.360 of the Migration Act 1958 to appear before the Tribunal via video conference, on 1 February 2024 at 9:00am.
On 23 January 2024, the Tribunal wrote to the applicant advising that a scheduled test call was arranged for 25 January 2024 at 15:00pm[sic]
On 31 January 2024, the applicant wrote to the Tribunal advising as follows;
“ Thank you for your email which I just saw.
It appears that the details in my earlier communication may have been overlooked by your office: I had requested a new date for the hearing originally scheduled for 25 January as it would not have been possible for me to attend on that day.
(Subsequently my request was favourably considered as well, for which I am grateful).
Unfortunately the test call you have proposed here in connection with the revised hearing date was also for that same problematic 25 January that was not possible for me.
I am afraid that because of health issues I was away from actively accessing my mails, and could not notify you any earlier.
I am in fact also separately requesting to be kindly given a revised date as health-wise I am still not in a position to attend the hearing proposed for tomorrow.
I am hoping and requesting that a new hearing date may be allocated for me in view of my present situation.
Thanking you in anticipation for a favourable consideration.”[2]
[2] Prepared and transcribed as submitted by applicant.
On 31 January 2024, the Tribunal (differently constituted) agreed to the applicant’s postponement request and invited the review applicant under s.360 of the Migration Act 1958 to appear before the Tribunal via video conference, on 6 February 2024 at 9:00am.
On 2 February 2024, the Tribunal wrote to the applicant advising that a scheduled test call was arranged for 5 February 2024 at 16:00 AEDT.
On 4 February 2024, the applicant wrote to the Tribunal via email advising as follows;
“…Your mail arrived while I was on medical leave; I attach the Doctor's Certificate.
I am having to handle many stress-related issues because of which my Doctor advised me rest from work during the working week last week. He has asked me also to get counselling support.
I realize that I will still not be well this week even after four days, and am requesting you to kindly consider scheduling the hearing after a few weeks so that I may be by then in better shape.
I do not at all know if it is appropriate to have made such a request, and I apologize if I am in breach of any communication protocol. I only thought that I should disclose my personal situation and request your sympathetic consideration in view of it.”[3]
[3] Prepared and transcribed as submitted by applicant.
The applicant enclosed a medical certificate dated 31 January 2024, stating Mr Rudra Prasad Kottu “has a medical condition and will be unfit for work from 01/02/2024 to 02/02/2024 inclusive.”
On 5 February 2024, the Tribunal wrote to the applicant advising that that the Member (differently constituted) had agreed to his request that the hearing be postponed.
On 19 February 2024, the Tribunal (as presently constituted) invited the applicant under s.360 of the Migration Act 1958 to appear before the Tribunal via video conference, on 19 March 2024 at 11:00am. The invitation requested the applicant to provide all documents intended to rely on to support the applicant’s case by 12 March 2024. The invitation further noted “The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in NRIT SOLUTIONS PTY. LTD's circumstances, in providing documents and preparing for the hearing.”
On 7 March 2024, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient) advising that a scheduled test call was arranged for 12 March 2024 at 3:30pm.
On 12 March 2024, the applicant did not join the test call. The Tribunal contacted the applicant via telephone and was advised that he was driving and that the Tribunal call back in 30 minutes. A further call attempt was made to the applicant, in which the Tribunal left a voicemail message requesting the applicant to contact the Tribunal to reschedule the test call.
On 12 March 2024, the applicant wrote to the Tribunal via email advising as follows;
“ Following your invitation by email on 19 February, I tried to get in touch with Ms. Sahana Kanjula as regards the hearing scheduled for 19 March.
Unfortunately, I was unsuccessful in contacting her for a long time as her phone was unreachable. I learnt just two days ago however that she is now in India following the loss of her mother.
It was explained to me that it was conveyed by AAT by phone that the scheduled hearing of 19 March would be a joint hearing.
I also learnt that she was applying to the AAT for a new date for the hearing in view of her personal situation, and the fact that she was not in Australia.
I do not know if you would accept the request for a rescheduling of the hearing but if that were possible I would of course join it on the rescheduled date.
May I inform that starting tomorrow till 17th March I will be travelling and staying at a retreat in view of the need for rest in view of my health situation that I notified the AAT about previously.”[4]
[4] Prepared and transcribed as submitted by applicant.
On 13 March 2024, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient) advising as follows;
“ I refer to your further request for a postponement in this matter. The member notes you have previously requested and have been granted extensions and postponements in this matter. The member will not in this instance grant you an extension and the hearing will proceed as scheduled. The Tribunal notes that you will be travelling to a retreat on 17 March 2024, therefore if it will assist the applicant, the mode of hearing can be changed to be via telephone.
If the applicant would prefer to attend via telephone then they should advise the Tribunal accordingly no later than 15 March 2023, otherwise the hearing will proceed via video conference…”
At the time of scheduling this latest hearing for the applicant, the Tribunal (as currently constituted) listed the nomination application and associated subclass 187 visa application as a combined matter. The Tribunal notes that the applicant’s reason for seeking to postpone the hearing is because the associated nominee in this matter requested a postponement of her matter and if her matter was to be rescheduled, he “…join it on the rescheduled date”.
The Tribunal has carefully considered whether to afford additional time to the applicant for the reason he purports and in doing so has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.
The Tribunal additionally is mindful that requests for deferrals must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal further observes that the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act 1975, directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and proportionate.
The Tribunal has carefully considered the applicant’s request in the context of the issue before it and is additionally cognisant that throughout the Tribunal’s engagement with the applicant, he has continually sought to delay the Tribunal’s decision-making process.
The Tribunal therefore declined to postpone the applicant’s hearing, as it formed the view that the reasons purported by the applicant in seeking to further delay this matter are not reasonable. Furthermore, the Tribunal considers that the numerous attempts the applicant has sought to delay this matter, including the most recent being the pending rescheduling of the associated hearing of the subclass 187 visa matter, does not contribute towards achieving the objectives of the functions of the Tribunal as per section 2A of the Administrative Appeals Tribunal Act.
Having consideration to the issue before the Tribunal, the Tribunal is satisfied that the applicant has been afforded fair and ample opportunity to provide relevant information and present his case before the Tribunal.
On 18 March 2024, the applicant wrote to the Tribunal via email advising as follows;
“ Thank you for your email informing me that the Member has turned down my request for another date.
The context of my previous communication was really that I believed that what was proposed would be a joint hearing with the Nominee, and I was only saying that as the Nominee was not in Australia and was unlikely to be available, that if the Nominee's application for another date were accepted by the AAT, that I would join such a joint hearing.
I am of course grateful that the respected Member kindly agreed to my previous requests all of them related to my health. I have, in my circumstances, to withdraw from participating in the hearing because of my health situation.
I will point out that one of the main objections from the Department related to the nomination was that there was no Labour Market Testing conducted. The context was the extraordinary circumstances of bush fires all over the country, the crisis that this entailed, especially for me when the very area where I then lived and worked was seriously impacted.
This was further compounded soon after by the difficulties posed by Covid 19 and subsequent lockdowns which did not give an adequate opportunity to launch the business in the way that I wished to.
I am certain that the business model I was evolving would work, given the opportunity. I had selected a candidate of sterling qualities eminently suited for what I had in mind, and who would help make my dream of creating a business of great social utility, which would also be a positive force in society, especially through this nominee, by leveraging access to the new immigrant communities of Australia. All this by using social media and its great abilities to create networks amongst people so disconnected today in the pursuit of personal and individual goals.
Ventures such as what I was working on ought to be judged on the strength of their potential and encouraged - it was a start-up idea. Facebook started as an idea, mine was an idea in response to the toxic character and influence of social media in society. Australia is today made of 30 percent immigrant population - they would be the participants and the beneficiaries of the project.
Following and because of Covid many concessions were made to many applicants considering the extenuating circumstances of the time. Would such possibly be made in my situation too?
We also now have an understanding that for British Nationals there is no need for Labour Market Testing anymore. The Nominee has always been one.
I would have presented arguments for the consideration of the member along these lines, hoping to be given the chance to launch an activity whose relevance and need remains unchanged in Australia, if not heightened.
But in view of the decision already made regarding tomorrow's hearing, while thanking the
Member for the consideration extended to me already, may I respectfully request him [sic] to decide the case in my absence.
Yours sincerely,
Rudra Kottu”[5]
[5] Prepared and transcribed as submitted by the applciant.
In accordance with the applicant’s request, the Tribunal has resolved this matter on the papers.
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 Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

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.
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 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
Relevantly, as noted above, r 5.19(12)(f) requires that a body specified by the Minister in an instrument in writing and located in the same State or Territory as the location of the position and has responsibility for the local area in which the position is located, has advised on certain matters relating to the nomination.
The review applicant nominated the proposed position Business Development Manager under the occupation of ICT Business Development Manager (ANZSCO 225212), located at Franklin ACT. On 26 February 2020, the delegate refused the application because the applicant did not provide advice from a specified body for the purpose of r.5.19(12)(f).
Information before the Tribunal shows that the applicant has been afforded numerous opportunities by the Department and Tribunal to provide evidence in support of this application, including evidence of obtaining advice from a relevant Regional Certifying Body.
On 13 July 2023, the Tribunal invited the applicant to provide up dated information including whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice specified under r.5.19(12)(f).
As of the time of this decision, the applicant has not provided evidence of obtaining Regional Certifying Body advice. As such the Tribunal is unable to be satisfied at the time of this decision, that the application demonstrates a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice for the purpose of r. 5.19(12)(f).
The Tribunal, therefore, is not satisfied that r 5.19(12)(f) is met. Accordingly, reg 5.19(9)(j) and reg 5.19(4)(f) are not met.
As the Tribunal has found the application does not meet r.5.19(4)(f), it is not required to consider the rest of the requirements as set out in r.5.19(4) and r 5.19(9).
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.
Karen McNamara
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
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2024] AATA 1595

25 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction