Onsite Medical Care Pty Ltd, ATF OM Care Trust (Migration)

Onsite Medical Care Pty Ltd, ATF OM Care Trust (Migration) [2023] AATA 2857 (10 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Onsite Medical Care Pty Ltd, ATF OM Care Trust
REPRESENTATIVE:  Ms Deanne Temple Scott (MARN: 0006911)
CASE NUMBER:  1928274
HOME AFFAIRS REFERENCE(S):          BCC2019/4506601
MEMBER:George Hallwood
DATE:10 August 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 August 2023 at 3:17pm
CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Marketing Specialist – position associated with the nominated occupation is genuine – position cannot be filled locally – genuine need for the nominator to employ a paid employee – position located in regional Australia – no adverse information known to Immigration – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 2.72, 5.19
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 27 September 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 9 September 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(d) of the Regulations because they were not satisfied that there was a genuine need for the identified person to be employed under the direct control of the nominator.
Mr Paulose Doss appeared before the Tribunal on behalf of the applicant on 10 August 2023 to give evidence and present arguments. As this is a combined hearing with that of the related nominee, the Tribunal also received oral evidence from Mr Naveen George Bangera, case number 1932949.
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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
Having reviewed the application and attachment the Tribunal finds the application:
·dated 9 September 2019 is made in accordance with approved form 1395 (Internet);
·identifies the position, Marketing Specialist;
·identifies a person, Mr Naveen George Bangera, in relation to the position;
·identifies an occupation, Marketing Specialist - occupation code 225113, in relation to the position,
·identifies the subclass and stream, subclass 187 Regional Sponsored Migration Scheme - Direct Entry Stream, to which the nomination relates;
·on the oral evidence of Mr Doss, was accompanied by the fee mentioned in reg 5.37;
·includes a written certification by the nominator stating that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958; and
·on the oral evidence of Mr Doss, was accompanied by the nomination training contribution charge and identified the ‘annual turnover’.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
In the application of 9 September 2019 the applicant answered ‘No’ to the question: ‘Is there any adverse information to declare about the applicant or a person associated with the applicant, including any information relating to the contravention of Australian laws, insolvency, sponsorship breaches and / or any other circumstances which might reasonably be considered adverse information?’. At the hearing Mr Doss confirmed that this is still the case. There is nothing before the Tribunal that suggests otherwise so the Tribunal finds there is no adverse information known to Immigration.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or 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.
In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Marketing Specialist and the date of application is 9 September 2019.
At the hearing Mr Doss told the Tribunal that there are no relevant licencing / registration / membership requirements. There is nothing before the Tribunal that suggests otherwise and the Tribunal finds there are no licencing / registration / membership requirements.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
At the hearing Mr Doss told the Tribunal that the applicant has not breached any employment or other laws. There is nothing before the Tribunal that suggests otherwise, and the Tribunal finds there is a satisfactory record of compliance with relevant laws.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
At the hearing Mr Doss told the Tribunal that the applicant has no debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments. There is nothing before the Tribunal that suggests otherwise, and the Tribunal finds on the basis of this information there is no debt payable by the nominator under s 140ZO.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant has provided a current company extract from ASIC, ATO activity statements, and financial reports. On the basis of this information the Tribunal finds that the nominator is actively and lawfully operating a business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.
At the hearing Mr Doss told the Tribunal that the applicant is not involved in labour hire activities. Having considered Mr Doss’ evidence and the nature of the business the Tribunal finds that the applicant is not involved in labour hire activities.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) is met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal, having considered the application, finds that the nomination application dated 9 September 2019 identifies a need for the nominee, Mr Bangera, to be employed in the position, Marketing Specialist, under the direct control of the nominator, Onsite Medical Care Pty Ltd as trustee for OM Care Trust.
A submission dated 20 April 2023 and signed by Mr Doss describes the scope and scale of the business which provides critical or ambulatory care for patients within their own place of residence, pre-empting the need for the patients to travel to hospital. The submission goes on to describe the necessity of the position, which has been filled by the nominee since 6 January 2020, to business operations.
Mr Doss also provided an oral submission describing the direction the business is currently taking and the importance of marketing to the additional and entrepreneurial aspects of the business.
On the basis of the applicant’s submissions and various company documents, in particular the financial documents demonstrating the growth of the business since the position was filled, the Tribunal finds that there is a genuine need for the nominee to be employed in the position under the nominator’s direct control.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
On the basis of the information as described below the Tribunal finds:
·Based on the employment contract signed on 21 April 2023 which states that Mr Bangera will be employed full-time and the contract will be for a period of 3 years; that the identified person will be employed on a full-time basis in the position for at least 2 years, and
·Based on the employment contract signed on 21 April 2023 which states that the contract duration has an option to renew for a further period [beyond 3 years] by mutual agreement; that the terms and conditions of the nominee’s employment will not exclude the possibility of extending the period of employment, and
·Based on the nomination application which describes the evidence used to determine the market salary rate setting the annual earnings at $65,000 per annum, the financial reports showing that wages have been paid for the position and the business has been profitable; that the nominator’s business has the capacity to employ the nominee at the annual market salary rate for the occupation for at least 2 years.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, of $250,000 as set out in the instrument IMMI 18/033, the requirements of reg 2.72(15) must be met.
Where there is no Australian worker performing equivalent work the instrument IMMI 18/033 sets out the method for determining the annual market salary rate. The first step is to identify whether there is an applicable fair work instrument, state industrial instrument or transitional instrument. If not, the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information which includes remuneration surveys generated across the relevant industry by a reputable organisation or body.
Mr Doss told the Tribunal that there is no Australian worker performing equivalent work and there is also no relevant fair work instrument, state industrial instrument or transitional instrument. The application sets out that the applicant used remuneration surveys including the Hays Guide and ABS data to identify the annual earnings of $65,000. The Regional certifying body advice identifies the nominated salary level of $65,000which they were satisfied would pay a salary of at least the annual market salary rate. For these reasons the Tribunal finds the annual market salary rate for the nominated occupation is $65,000 and whether it has been determined by the applicant in accordance with the relevant instrument. For these reasons the requirements of reg 2.72(15)(c) are met.
The TSMIT as set out in the instrument IMMI 18/033 is $53,900 and the Tribunal finds that the rate of $65,000 for the occupation is not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(d) are met.
The contract of employment signed on 21 April 2023 shows that the nominee’s annual earnings will be $65,000 which the Tribunal finds is not less than the rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.
The contract of employment signed on 21 April 2023 shows that the nominee’s annual earnings will be $65,000 which the Tribunal finds will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
The Tribunal notes that recent pay slips provided to the Tribunal show that the nominee is currently being paid at the rate of $68,796 per annum. There is no information before the Tribunal that indicates that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)

Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The contract of employment signed on 21 April 2023 contains a standard set of employment conditions including those set out in the National Employment Standards in the Fair Work Act 2009. There is nothing else before the Tribunal in relation to employment conditions. For this reason, the Tribunal finds there is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 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).
For the reasons set out the Tribunal finds:
·The instrument IMMI 18/037 sets out the postcodes that represent rural Australia and includes the range from 6200 to 6799. The application sets out that the nominated position is located in Greenfields Western Australia postcode 6210. Mr Doss and Mr Bangera told the Tribunal that the nominated position is located in Greenfields WA. Therefore, the position is located at a place in regional Australia;
·Mr Doss told the Tribunal that the business operated by the nominator is located at that place.
·The applicant provided details of advertising the position, the applicants that applied, and evidence that the nominee was the only person that met all of the position criteria. Therefore, the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned;
·The applicant provided a copy of the position description for the position of Marketing Specialist. The instrument LIN 19/047 includes the occupation Marketing Specialist in the Regional Occupation List. Having considered both the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant legislative instrument and there are no additional applicability requirements for that occupation to be met;
·The instrument IMMI 18/037 sets out the regional certifying body with responsibility for the local area. On 1 October 2019 the Department of Training and Workforce Development WA advised the Minister that they were satisfied the identified person would be paid at least the annual market salary rate for the occupation, there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
CONCLUDING PARAGRAPH
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.
George Hallwood
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.

[2023] AATA 2857

10 August 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

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Appeal