Oz Business Link Pty Ltd (Migration)

Oz Business Link Pty Ltd (Migration) [2023] AATA 3329 (5 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Oz Business Link Pty Ltd
REPRESENTATIVE:  Mr Paul Hense
CASE NUMBER:  1921221
HOME AFFAIRS REFERENCE(S):         BCC2018/3408673
MEMBER:Alison Mercer
DATE:5 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 5 September 2023 at 3:36pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Exporter – occupation is relatively specialised – applicant company had been deregistered – position associated with the nominated occupation is genuine – position cannot be filled locally – genuine need for the nominator to employ a paid employee – actively and lawfully operating a business in Australia – no less favourable terms and conditions of employment – lawfully operating business – 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
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 15 July 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, Oz Business Link Pty Ltd, applied for approval of its nominated position of Importer/Exporter on 8 September 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(a) and (d) of the Regulations, as the delegate was not satisfied that the applicant had established that it had a genuine need for the nominated position within its business, nor that it was actively operating. As such, the applicant did not satisfy the requirements for approval of its nomination in the Direct Entry stream and did not claim to meet the requirements of any other stream.
The Tribunal received a review application on 1 August 2019. It was lodged by a director of the applicant, Mr Ardash Dutt, and was accompanied by a copy of the delegate’s decision and a authority by which Mr Dutt appointed an immigration lawyer, Mr Paul Hense, as the applicant’s representative and authorised recipient for correspondence.
On 14 September 2020, the Tribunal wrote to the applicant via the lawyer to advise that it appeared that the Tribunal did not have jurisdiction to review the nomination refusal as the applicant company had been deregistered on 10 February 2020. The applicant was invited to comment or respond to this information.
On 27 September 2020, the Tribunal received a response indicating that the applicant was in the process of re-registering itself.
On 17 August 2022, the Tribunal wrote to Mr Dutt, via the agent, to invite him, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the applicable criteria in r.5.19 (not just the criteria the delegate found were not met). The Tribunal requested that the information be provided by 31 August 2022. On 29 August 2022, the Tribunal received a request for an extension of time to provide the information, and this was granted to 14 September 2022.
On 12 September 2022, the Tribunal received the following:
·legal submissions dated 12 September 2022;
·letter of 8 September 2022 from co-director of the applicant, Mr Jasneet Patel, addressing the genuine need for the position;
·organisational chart for the applicant;
·job description for nominated position, dated 7 April 2022;
·ASIC current and historical extract and ABN registration for the applicant;
·applicant’s company tax returns for 2020/2021 and 2021/2022;
·applicant’s Business Activity Statements (BAS) from 1 July 2020 to 30 June 2022;
·applicant’s financial reports for 2020/2021 and 2021/2022;
·work samples evidencing the nominee’s position;
·employment contract for the nominee dated 7 April 2022;
·Seek, Indeed and Glassdoor salary surveys for an Export Operator and Export Manager (two) respectively dated 5 September 2022;
·Labour Market Testing (LMT) advertisements lodged through Adzuna (for the primary application) and Jobactive (for the Regional Certifying Board, RCB, application); and
·RCB advice form 1404 issued 11 May 2022.
On 3 March 2023, the Tribunal wrote to Mr Dutt, via the agent, to invite him to attend a hearing on behalf of the applicant, to be held by videoconference on 23 March 2023. He was requested to provide any further submissions in support of the case by 16 March 2023.
On 20 March 2023, the applicant’s agent advised the Tribunal that Mr Dutt ceased as a director of the applicant in October 2019, and that Mr Jasneet Singh (the nominee) would appear on behalf of the applicant at the hearing, as one of the 2 current directors (the other being Mr Vishal Chadda).
On 22 March 2023, the applicant’s lawyer provided the following additional material:
·updated ASIC Current and Historical Company extract issued 20 March 2023;
·signed Head of Agreement dated 21 November 2018 for office premises in Ballarat;
·Platypus Co-Working Licence Agreement dated 20 March 2023 for premises in Ballarat;
·BAS for quarters ending September 2022 and December 2022;
·copy of company’s licence to export meat as a Non-Packer exporter, commencing 1 November 2021 and running to 30 November 2023;
·tax invoice for US $50,000 issued by the applicant on 1 March 2023 and confirmation of sale dated 10 February 2023 from Fletcher International Exports to the company;
·copy of Commonwealth Bank Foreign Currency Accounts transfer dated 12 January 2022 (for USD $165,873) and May 2022 and 14 June 2022 (for USD $99,093);
·copy of the applicant’s Commonwealth Bank Statements (highlighted with major transfers, Mr Singh being the customer, Fletcher the supplier, from 14 April 2021 to 6 March 2023);
·Mr Jasneet Singh’s tax returns for financial years 2020/2021 and 2021/2022 and his tax assessment notices for the same financial years; and
·Mr Singh’s PAYG payment summaries for 2020/2021 and 2021/2022 and payslip issued 19 March 2023 for him.
The lawyer provided the following comments on the above material:
…
The nominee is a Non-Packer exporter… Fletcher International Pty Ltd is a Packer Export (with Exporter on its Tax Invoice to the company…). That is, it packs meat ready for export, after Halal and other formalities have been applied to it. I am instructed Fletchers has its own live produce which it slaughters, and packs.
Attachments A to H show that the company is lawfully operating a business in Australia, and that the location of that business is in a regional area.
Attachments H to K show that the company has been paying Mr Singh the sum of $78,651, the nominated salary, and so presumably would be able to pay that in the future. These attachments also evidence the need for the position.
…
On behalf of the applicant, Mr Jasneet Singh appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s lawyer.
The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, who did not reside in Melbourne. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Mr Singh told the Tribunal that he originally came to Australia as a student to undertake a Bachelor of Commerce degree; however, he was unable to complete this qualification as he was seriously injured in a car accident and had to leave Australia. After he recovered, he returned to complete a Diploma of Environmental Science but found that he did not want to work in this area. While he was still studying, his accountant Mr Ardash Dutt established Oz Business Link Pty Ltd, with the aim of exporting meat to the Middle East. Mr Singh told the Tribunal that Mr Dutt ran a few import/export businesses, in addition to his accountancy practice, but did not have extensive knowledge of exporting meat to the Middle East. Mr Dutt therefore offered Mr Singh a role within the business. Mr Singh told the Tribunal that he had experience in this field, as he had lived the United Arab Emirates (UAE) for 6 years and had worked in importing Australian lamb there. In addition, his father had been in the business of importing meat to Dubai for around 40 years. He therefore felt qualified to assist Mr Dutt with the new business, but was initially limited to working 20 hours per week due to his student visa conditions.
In response to the Tribunal’s query, Mr Singh said that Mr Dutt (a former director of the business), and subsequently, Mr Vishal Chadda (a current director), were essentially silent partners in the business, and that he (Mr Singh) was the only employee. He said that he did consult with Mr Chadda about big strategic decisions for the company but he (Mr Singh) was predominantly concerned with all of the activities of exporting lamb to the UAE, and with sourcing and liaising with suppliers in Australia and customers overseas. He said the company mostly exports to the UAE but he had plans to expand the company’s market to New Delhi and Qatar. However, he currently held a bridging visa C which did not permit him to travel and this had hampered the expansion plans, as many potential overseas customers (such as high end hotels) wanted to meet in person and show him their operations and food supplies before placing any orders.
Mr Singh clarified that he held a bridging visa C as he was originally the dependent on his former wife’s permanent residence visa but they divorced in 2019, and he did not hold a substantive visa at the time he made his own subclass 187 visa application.
Mr Singh described the operations of the company’s business, advising that he sourced lamb suppliers in Australia and then exported lamb to the UAE. He told the Tribunal that the company was a Non-Packer exporter, which meant that it did not prepare the meat itself, but relied on a Packer company to do so, after which it was certified as Halal and able to be exported. As a Non-Packer exporter, the company was not legally required to be registered as an Exporter but had chosen to be registered as such by the Australian government to enhance its reputation in the field. Mr Singh said that Fletchers International Pty Ltd, based in Dubbo, NSW, was the main supplier to the company, and was one of the largest suppliers in Australia. However, he also used other suppliers in Victoria and elsewhere in NSW. Mr Singh said that the main clients in the UAE were large hotels, as well as his father’s business. He noted that the large hotels there were very picky as they had high standards and reputations to uphold. This required him to be constantly vigilant over the products the company exported, as any missing documentation or drop in quality could result in a consignment being delayed or rejected. Mr Singh told the Tribunal that the packaging and certification requirements were very strict, both from the Australian and overseas sides.
In response to the Tribunal’s query. Mr Singh confirmed that the company’s premises are in Ballarat, in regional Victoria, but he was still living in metropolitan NSW. He told the Tribunal that during the extended COVID19 lockdowns, he chose to live in NSW, where he was able to move around more freely to visit abattoirs and suppliers. However, since the lockdowns ceased, he travelled frequently to Victoria to work from the company office and stayed with a friend in nearby Ballan. The Tribunal discussed with Mr Singh and his lawyer the fact that one of the requirements for approval of the nomination was that not only that the nominating business was located in regional Victoria but also that the nominated position was too. It queried whether this was the case. Mr Singh said that he was frequently in Ballarat and had understood that once he was granted a subclass 187 visa, he would have 6 months to move to regional Australia. He indicated that he was willing to move there before then, and that his intention was to live and work in Ballarat.
In relation to there being a genuine need for the position, and that no suitable other candidates were able to be identified, Mr Singh said that Mr Chadda conducted the advertising for the nominated position, so there was no conflict of interest. The Tribunal noted that this seemed an artificial distinction, given Mr Singh was both a director of the company and the nominee. Mr Singh and his lawyer argued that although this might be so, the advertising was genuine, and it was genuinely the case that they had not been able to find any candidates for the role who had the required experience to undertake the role. Mr Singh emphasised that the business is a genuine one, has grown considerably and is dependent on his skills and contacts, although he is not the only director or investor.
At the conclusion of the hearing, the Tribunal agreed to defer its decision until 6 April 2023 to enable the applicant and his lawyer to make any additional submissions they wished to make.
On 6 April 2023, the Tribunal received the following additional submissions from the applicant’s agent:
…
I refer to the above review application, and make the following submission, also attaching further evidence, further to the Tribunal's Hearing of 23 March 2023.
I attach:
1. A Statutory Declaration settled on 4 April 2023 by Mr Raman Miglani, stating that Mr Singh is a tenant at the residential address of 17 Fraser Street, Mount Pleasant VIC 3350 - attachment A
2. A Picture of office number 3, located at Level 2, 51 Lydiard Street South, Ballarat - attachment B
3. A Letter dated 31 March 2023 from the Commonwealth Bank, confirming the details of Mr Singh's bank account there (and evidencing the 17 Fraser Street address) - attachment C
4. An Email dated 27 March 2023 from Mr Singh to Fletcher International Meats, informing that supplier of the new business/office address of Level 2, 51 Lydiard Street South, Ballarat Victoria, with a return email from Fletcher's - attachment D
4. [sic] An Email (containing a Tax Invoice for $249.60) dated 30 March 2023 from Commerce Ballarat, acknowledging Mr Singh's application (on behalf of the company) to join the Ballarat Chamber of Commerce - attachment E
5. An Email dated 27 March 2023 from Ted Rodgers of Ararat Meat Exports (with some background information on the company (an accredited HALAL facility)) in response to Mr Singh's inquiry about accessing suitable export meats from that supplier- attachment F
6. A Bundle of Discharge Summaries from 21 March 2021 to 20 July 2022, evidencing a number of Mr Singh's medical conditions for which he needed attention - attachment G
7. Medical information on flank pain from the Mount Sinai Health Library - attachment H
7.[sic] A Referral Letter dated 31 August 2021 from Dr Fauzia Rehan (Mr Singh's local General Practitioner) to Dr Peter Nash (I am instructed an Urologist) - attachment I
Is the position, and business, located in regional Australia?
The primary issue as the Tribunal has helpfully stated, is whether the business is located in a regional area, and whether that position is located at that place [r.5.19(12)].
Mr Singh on behalf of the nominating company Oz Business Link Pty Ltd, has given firm evidence to the Tribunal that this place is Ballarat, in regional Victoria. However an issue is that, given Mr Singh has lived in a suburb of Sydney for some years, how can the business be run from Ballarat?
As the Tribunal will recall, the company is involved in the business of exporting meat products to the Middle East.
Where the company has its business, and why
The company was established on 18 September 2015. According to ASIC's Company extract, the first stated principal place of business was an address in Blacktown.
Mr Singh instructs of the following.
Mr Singh moved this meat exporting business to Ballarat as he was looking to acquire an alternative supply chain. Victoria, being the second largest meat producer in Australia, had a greater potential for access to future and alternative suppliers. The Ballarat region had 57 meat producers with a wide variety of cuts, and Melbourne Port is one of the largest ports in the country and is closer to suppliers, thus providing better, more efficient and cheaper logistics.
Additionally, Melbourne had excellent shipping routes to the Middle East, the major destination for the exports of the company.
I note that the Tribunal has been provided with a Head of Agreement of 29 November 2016, for a 20 square metre site at Suite 1, Level 2, 11 Lydiard Street, Ballarat.
Mr Singh instructs that the annual rent on this space was paid, and he worked from that office for a year. paid the annual rent on this space, and worked from that office. I note that given he was the sole employee of the company, and given the keeping of records and work is done electronically, a 20 metre space would be more than adequate for his purposes (especially given the amount of time he was on the road, as he gave the Tribunal).
The Tribunal will note that a substantial part of Mr Singh's work is done either by computer, or by being on the road). There is no need for him to have a large office space, and he personally discharges the duties of the position.
The company was moved from Ballarat in time, but in time Mr Singh wanted to re establish the business there. As the Tribunal would be aware, from February 2020 the world was hit by the COVID-19 pandemic, and Australia was no exception. Due to the outbreak, Mr Singh decided to move to Sydney where he had family, friends, and support. It was a safer option for him, as he was deemed to be an individual with a higher risk of infection.
Nevertheless from 4 October 2020 the principal place of business was Suite l, Level 2, 11 Lydiard Street Ballarat, Central Victoria 3350 according to ASIC records.
Additionally, during that time, he was facing various health issues for which he needed to attend the emergency rooms of Royal Prince Alfred Hospital several times - see attachment G. He was referred to a specialist (see attachment I), and unfortunately, the appointments had long waiting times due to the excessive load on the healthcare system during COVID. Mr Singh found this an extremely challenging time personally. Staying close to his support system in Sydney, and to a major hospital which was acquainted with his various health issues, was the best option.
Now that the COVID situation is under control and his medical conditions are under control, he has made the decision to move back to Ballarat, and has. The company's meat exports have also gained back momentum, and it's no longer possible for him to manage the workings of the company's business while staying in Sydney.
As mentioned before, Victoria has a higher potential and scope for the company's particular meat export business, and so he has returned to Ballarat to stay and continue growing the company.
Mr Singh's current residential address
I am instructed Mr Singh moved to Ballarat on Monday 3 April - see attachment A - with a payment for rent made on 1 April 2023. The suburb of Mount Pleasant is the oldest suburb in Ballarat.
The company's return of business location to Ballarat
Mr Singh instructs that the business has re-established itself in Ballarat. The Tribunal has before it a Coworking Licence Agreement dated 20 March 2023 (attachment C of my submissions of 22 March 2023). It is for a private office and desk at offices in Level 2, 51 Lydiard Street South, Ballarat. I refer you to attachment B, a photograph of the relevant office. The Tribunal will note it is sent from Samantha Davies, of Platypus Coworking the relevant office landlord.
I refer you to attachment C as evidence of Mr Singh's address for banking purposes as being the Ballarat address, and evidence of notification to the Commonwealth Bank of the move.
I refer the Tribunal to attachments B to F, as evidence of the re-establishment of the company's business in Ballarat.
Is the business in reality conducted in a regional location?
From an examination of the ASIC Company Extract dated 20 March 2020, the Tribunal will note that from October 2020 the business was conducted at Ballarat. This both evidences the connection the business (and position) has, if not as a present reflection one showing an intention to have the business centred around Ballarat.
The nature and structure of Regulation 5.19(12)
Comment must be made on the particular structure of Regulation 5.19(12) ("the relevant Regulation").
Unlike many Schedule 2 subclasses of visa, the requirements of this Regulation are not binary. In Schedule 2 one regularly finds the different temporal criteria of time of application and time of decision, specifically stated in either different sub-clause headings, on within particular sub-clause criteria.
Critically for this nomination application, that structure does not apply. That is, if the nominator can demonstrate at the time of Tribunal decision satisfaction of the criteria in the relevant Regulation, the Tribunal must move to approve that particular part of the Regulations.
That is, even if the nominator has not satisfied the part of the Regulation through the course of this review, than can be rectified. Of course the Tribunal needs to be satisfied that, in this case, the business and position is now being conducted in Ballarat, a regional area.
Mr Singh's intention to move the business and position back to Ballarat, interrupted by illness
As mentioned, Mr Singh made the decision, indicated by the 2020 decision reflected in the formal ASIC reporting he made to that body, to move the business (and position) back to Ballarat.
However he instructs this decision was not executed due to chronic illness. He was admitted on multiple occasions to the emergency section of Royal Prince Alfred Hospital, over the period 21 March 2021 to 20 July 2022 for a variety of medical issues - see Attachment G. He was admitted for examination and treatment on 21 March 2021, 11 July 2021, 25 September 2021, 29 September 2021, 18 November 2021, 11 April 2022, 12 July 2022 and 20 July 2022. This included flank pain (which may be an indicator of kidney disease - see attachment H), acute urinary tract infection, and chest pain.
Attachment I is a referral to an Urologist for investigations of Mr Singh's medical issues. I am instructed there was over a three month wait for a visitation.
The Labour Market Testing (LMT) aspect
The Tribunal also expressed some concern about the mechanics of the Labour Market Testing, and whether it was done at arms length (Mr Singh being the nominee and visa applicant, and also the company's representative assessing whether there is a suitable person for the position).
No Labour Market Testing is done at so-called arms length, in that the nominator is always the person who judges whether there is a suitable person for the advertised position. There is clearly a conflict of interest (if you will) in the process, in all circumstance.
As the Tribunal noted, the company (as the nominator) is a separate legal entity to Mr Singh (as the visa applicant).
Additionally, although the Tribunal is not obliged to accept the advice of the Regional Certifying Body, that advice was that no local person could fill the position. Given Mr Singh's specialised knowledge and skills in exporting to specific overseas markets (which he spoke to at some length), this aspect should not concern the Tribunal.
Conclusion
I thank the Tribunal for the opportunity to make further submission, and provide further evidence, after the relevant Hearing.
If you have any question or query, please do not hesitate to contact me.
…

Following this response, the Tribunal wrote to the applicant via the agent on 5 May 2023 to advise that:
…
The Presiding Member has reviewed the Form 1404 provided by the Ballarat RCB dated 11 May 2022 and notes that it appears to have incorrectly assessed the nomination by Oz Business Link Pty Ltd as an SESR Employer Sponsored stream nomination, whereas it is an RSMS Direct Entry stream nomination - the RCB therefore needs to certify the matters set out at paragraph 15 of the form 1404, which has not yet been done. Please provide a new RCB certification with the correct assessment as soon as possible.
…
On 3 August 2023, the Tribunal received from the applicant and his agent a new Form 1404 from the relevant RCB, Commerce Ballarat, of the same date. The RCB assessor states that her advice was that the nomination for an RSMS Direct Entry stream nomination did not satisfy the requirements that the nominee would be paid at least the annual market salary rate for his occupation, that there was a genuine need for the nominee to be employed in the nominated occupation under the applicant’s direct control, or that the position could not be filled by an Australian citizen or permanent resident who was living in, or would move to the local area, concerned. The assessor noted the following:
…
After an extensive assessment of both information provided and additional local resources the decision has been made that the application does not satisfy all required points. RSMS legislation requires the business operated by the nominator to be located in regional Australia, this has not been confirmed, the address for the operation of the business and leasing agreement cannot be viewed or accessed publicly and there is no digital footprint of the nominee being present or having local connections in the Ballarat region. In addition, whilst the Annual Market Salary Rate for the role of importer/exporter appears to meet what we would be expecting, as the nominee is a sole employee, we cannot satisfy that the role does not require additional workload and/or duties to the job description.
…
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is subclass 187, the application must be made before 16 November 2019.
The Tribunal has reviewed the information on the Department’s file and 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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
As put to Mr Singh at hearing pursuant to s.359AA of the Act, the Department’s Integrated Client Service Environment (ICSE) electronic records indicate that in August 2018 and July 2019, a Department officer made notes alleging that the applicant’s business was fraudulent and had been created solely to facilitate the grant of permanent residence to Mr Singh.
These allegations were denied by Mr Singh at hearing, who pointed to the fact that the business had been operating since 2015 (albeit with some periods of downturn, such as during the COVID19 pandemic), had had 2 other directors (Ardash Dutt, then Vishal Chadda) besides himself to date, and was genuinely operating as an exporter of Australian meat to the middle East, as evidenced by copious documentary evidence provided by Mr Singh.
Having reviewed the Department’s records, it appears to the Tribunal that no further investigation has been undertaken, or definite adverse findings made, by the Department. In the absence of an active investigation, or findings resulting in a sanction or similar, the Tribunal is not satisfied that there is any adverse information that falls within the scope of r.1.13A in relation to the applicant. The Tribunal has separately considered the issue of whether the business is genuinely operating, and whether there is a genuine need for the nominated position, in its assessment of rr.5.19(9)(a), (c) and (d) below.
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 either New South Wales and/or Victoria, the relevant occupation is Importer/Exporter and the date of application is 8 September 2018.
The Tribunal is satisfied that there is no requirement in Victoria or New South Wales for a person acting as a non-packer Importer/Exporter to be licensed or registered.
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.
There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth, Victoria or New South Wales relating to employment.
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.
There is no evidence from the Department’s records that the applicant owes any debt pursuant to s.140ZO of the Act.
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.
As noted above, the delegate was not satisfied the applicant was actively operating its business at the time of the Department decision in mid-2019. The Tribunal has had the benefit of receiving additional material confirming the applicant’s operations, including:
·current ASIC current and historical extract and ABN registration;
·company tax returns and financial statements for 2020/2021 and 2021/2022;
·BAS to December 2022;
·company licence to export meat as a Non-Packer Exporter; and
·bank transfers and invoices between the applicant, Fletcher International Exports, and overseas customers, variously dated.
The Tribunal is satisfied from the above material that the applicant is lawfully and actively 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.
There is no evidence that the applicant’s business activities include labour hire to unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not.
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 is satisfied that the nomination application identified a need for nominee to be employed in the position, under the direct control of the applicant, and finds that r.5.19(9)(c) is met.
The Tribunal notes the allegation made by a Department officer that the applicant’s business was established solely to facilitate permanent residence for Mr Singh, and further notes that this was emphatically denied by him. Having reviewed his evidence at hearing and the documentary evidence, the Tribunal is satisfied that the applicant is operating a legitimate meat export business. It is further satisfied that, given the nature of the business, it has a genuine need for the nominated position of Importer/Exporter.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(d) is 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.
The most recent contract of employment for the nominee is dated 7 April 2022 and provides that employment is full time on a permanent and ongoing basis, with a salary of $78,650 per year. The Tribunal is satisfied that the terms and conditions of the contract do not include an express exclusion of the possibility of extending the period of employment. It therefore finds that rr.5.19(9)(e) and (f) are met.
In relation to the annual market salary rate, the Tribunal is satisfied (for the reasons set out in the section below) that it should be taken to be approximately $63,000.
The applicant’s agent argued that the nominee has been employed full time in the nominated position for several years already, and that the applicant’s business is profitable enough to employ the nominee for at least 2 years at the annual market salary rate, and indeed, at his proposed salary rate of $78,650 per year. The applicant’s financial statement for 2021/2022 lists trading revenue of $718,732 and total expenses of $498,531 with net profit of $153,942. The total expenses include wages/salary of $118,651 and superannuation of $7,472. The nominee’s tax return and his tax assessment notice issued by the ATO for the same financial year lists taxable income from the applicant of $72,877.
Given the above, the Tribunal is satisfied that the applicant has the financial capacity to pay the nominee at least the annual market salary rate for 2 years, and it finds that r.5.19(9)(g) is 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 (currently $250,000). 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) (currently $53,900), 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, the requirements of reg 2.72(15) must be met.
The Tribunal notes that there is no equivalent Australian employee to the applicant in the business, and that the employment contract for the nominee dated 7 April 2022 provides for an annual salary of AUD $78,650 plus superannuation.
The Tribunal accepts that there is no Award applicable to the nominated occupation of Importer or Exporter, and in these circumstances, item 8 of IMMI 18/033 states that the annual market salary rate that applies is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information. Item 4 states that ‘relevant information’ may include, but is not limited to:
(a) information on the Australian government’s Job Outlook website;
(b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
(c) written advice from registered employer associations and/or unions; and
(d) remuneration surveys generated across the relevant industry by a reputable organisation or body.
The Australian government’s Labour Market Insight (formerly Job Outlook) website does not provide an earnings figure for the occupation of Importer/Exporter. However, the following remuneration survey websites (consulted May 2023) provide this information:
·Payscale – average salary for an Import/Export Agent in Australia is $57,406; and
·Glassdoor – average salary for an Importer/Exporter in Australia is $68,000.

Given this, the Tribunal considers it reasonable to consider the annual market salary rate for the occupation of Importer/Exporter to be approximately midway between the above salaries, at $63,000. The Tribunal finds that it has been determined in accordance with IMMI 18/033.
The Tribunal further finds that:
·the annual market salary rate for the nominated occupation is not less than the TSMIT (currently $53,900);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation;
·the nominee’s annual earnings in relation to the occupation will not be less than the TSMIT; and
·there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the nominated occupation.
For these reasons, the Tribunal finds that the requirements of reg 2.72(15)(c), (d), (e), (f) and (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.
There is no evidence before the Tribunal to indicate that there is information known to Immigration indicating that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable to those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location.
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).
IMMI 18/037 defines ‘regional Australia’ for these purposes. In the nomination application, it was stated that the business and position are located in Ballarat, Victoria, postcode 3350. This is consistent with the address on the letterhead of the applicant and its current address listed on the ASIC website. The postcode for Ballarat is listed as ‘regional Australia’ in IMMI 18/037.
However, as discussed at hearing, the Tribunal had some doubts about whether the nominated position and business were in fact based in Ballarat, given that the residential address provided to the Tribunal by Mr Singh in his review application lodged in August 2019 was in metropolitan Sydney, NSW, and the business address for the applicant in its company tax returns for 2020/2021 and 2021/2022 was the same residential address in metropolitan Sydney. The Tribunal notes that the most recent RCB certification of 3 August 2023 raised similar concerns, noting that it had not been confirmed that the applicant’s business was located in regional Australia, as the business address and lease agreement could not be publicly verified and the business did not have a ‘digital footprint.’
Mr Singh gave evidence at hearing that the business premises were located in Ballarat and while he did not have his own residence there, he was currently staying with a friend in Ballarat, although he also travelled to NSW, where 1 of his suppliers was based. He provided evidence following the hearing of the agreement for the business co-working premises in Ballarat and the business’ registration with Commerce Ballarat on 30 March 2023. He also provided a statutory declaration dated 4 April 2023 from his friend confirming that Mr Singh is renting his property in Ballarat from 1 April 2023 onwards. It was submitted by Mr Singh’s agent that Mr Singh had intended to relocate to Ballarat earlier, but had not done so due to COVID19 restrictions in place at various times in both NSW and Victoria in 2020 and 2021, and due to ongoing medical issues affecting him in 2021 and 2022. Evidence was provided of several emergency hospital visits by the applicant to St George’s Hospital in Sydney between March 2021 and July 2022 relating to a urinary tract infection and chest pain. The ASIC Current & Historical Company Extract lists the current business address as being in Ballarat, effective from 4 October 2020.
Following the hearing, the relevant RCB noted in August 2023 that it could not satisfied that the applicant’s business was based in Ballarat due to the lack of publicly available evidence regarding its lease and its lack of a ‘digital foot print.’ The Tribunal has considered these concerns carefully, particularly since they are similar to the Tribunal’s own concerns about whether the business is genuinely located in Ballarat. Ultimately, the Tribunal accepts that it has a small ‘foot print’ as a business, as it is essentially run by the nominee, with the Australian director as a silent partner who is not actively engaged in the day to day business of the applicant. Moreover, the applicant does not pack the meat it exports itself; rather, it outsources this to other Australian businesses. Accordingly, on balance, the Tribunal is satisfied that the business does not require a substantial premises from which to operate, and it accepts that (for the moment) the applicant operates out of a co-working office space it rents in Ballarat, and that its registered office is there. In addition, it is a member of the local Chamber of Commerce there. The Tribunal further accepts that (for the moment) the nominee has a private rental agreement with a friend for accommodation in Ballarat, although he also spends time on the road interstate (principally Dubbo) in the pursuit of the business’ objectives.
Given the above, and extending the benefit of the doubt, the Tribunal is satisfied that the applicant’s business and the nominated position are located in Ballarat, Victoria, postcode 3350. It is satisfied that IMMI 18/037 includes this postcode in ‘regional Australia.’ The Tribunal therefore finds that r.5.19(12)(a) and (b) are met.
In relation to whether 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 Tribunal notes that on behalf of the applicant, it was argued that the position was advertised via the Adzuna and Jobactive websites in early 2022, and that no suitable candidates were found, as those who did respond had insufficient relevant experience to undertake the duties of the position. The Tribunal is satisfied that the advertisements lodged describe the position duties, its location and its salary. However, as discussed with Mr Singh and the agent at hearing, the fact that Mr Singh is both the nominee and a director of the company calls into question whether this advertising was genuinely conducted at arms’ length. Mr Singh maintained that it was and stated that the Australian director authorised the advertising, not him, and that it was genuinely the case that no suitable candidates responded. The Tribunal notes that both advertisements list Mr Singh as the representative of the applicant for candidates to contact, suggesting that he was responsible for determining whether applicants were suitable candidates for his own job. In the Tribunal’s view, this suggests that the labour market testing undertaken was not genuinely at arm’s length. In relation to whether the position can currently be filled locally (or by an Australian worker willing to move to the area in which the position is located), the Tribunal notes that the most recent Skills Priority List issued by the Australian government’s National Skills Commission (issued late 2022) does not list the occupation of Importer or Exporter as being in short supply in any state in Australia.
On the other hand, Mr Singh argued that, as the incumbent of the nominated position for several years, he had genuinely developed and expanded the applicant business including by establishing personal relationships with Australian and overseas businesses, which it would be difficult for a new employee to establish or maintain, and the loss of which would be detrimental to the applicant’s business.
The Tribunal is mindful that the purpose of the Regional Skilled Migration Scheme is to enable regional Australian businesses to employ skilled workers when there are none available locally, and that it was not created to be a vehicle for ‘self-sponsorship.’ However, the Tribunal is satisfied that the applicant company is a separate legal entity from the nominee Mr Singh, and that is genuinely operating a meat export business, and has done so for some years, even though the only active employee within it is the nominee, who is also a director of the business. Essentially, Mr Singh (with the assent of the 2 successive Australian directors who have been silent partners) has created his own position within the business, and now argues that it cannot be filled locally due to the lack of local candidates with the proprietorial knowledge and skill that he has.
The Tribunal considers that the occupation of Exporter is relatively specialised, and is not a common occupation, in relation to which one might expect many people to have the required knowledge and/or qualifications (depending on the product(s) to be exported).
Having weighed the above factors carefully, the Tribunal accepts that the nominated position could not be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned, given the specialised nature of the nominated position. Accordingly, it finds that r.5.19(12)(c) is met.
The Tribunal is satisfied that IMMI 18/043 lists the occupation of Importer/Exporter (ANZSCO code 133311) and does not impose any occupational caveats on the occupation. The Tribunal has compared the duties set out in the position description for the nominated position and is satisfied that they align with the duties set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary occupational description for an Importer/Exporter. It is further satisfied that these duties are carried out by the nominee Mr Singh. Accordingly, it finds that r.5.19(12)(d) and (e) are met.
The Tribunal is satisfied that the relevant Regional Certifying Body (RCB), Ballarat RCB, certified on 3 August 2023 that it had advised the Minister about whether the position would be paid at least the annual market salary rate for the occupation, whether there was a genuine need for the nominee to be employed in the position under the direct control of the applicant, and whether the position could be filled by an Australian citizen or permanent resident who was living in, or would move to, the local area concerned. As noted above, it was not satisfied that these requirements were met. However, r.5.19(12)(f) does not require that the RCB’s certification was positive; merely, that it has advised the Minister about the matters set out in r.5.19(12)(f). Accordingly, the Tribunal finds that r.5.19(12)(f) is met.
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also 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.
Alison Mercer
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 3329

5 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction