SHAYONA BUSINESS PTY LTD (Migration)

SHAYONA BUSINESS PTY LTD (Migration) [2023] AATA 2571 (10 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SHAYONA BUSINESS PTY LTD
REPRESENTATIVE:  Mr DEEPAK PANCHAL (MARN: 0747362)
CASE NUMBER:  1928142
HOME AFFAIRS REFERENCE(S):          BCC2019/4084114
MEMBER:George Hallwood
DATE:10 July 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 July 2023 at 12:09pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry stream – occupation of Facilities Manager – genuine position – National Employment Standards – actively and lawfully operating in Australia – supervising building cleaners – full-time position for at least 2 years – annual market salary – terms and conditions no less favourable – tasks of the position correspond to nominated occupation – decision under review set aside
LEGISLATION
Fair Work Act 2009
Income Tax Assessment Act 1997
Migration (Skilling Australians Fund) Charges Act 2018
Migration Act 1958, ss 140, 245
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, rr 1.03, 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 20 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 17 August 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 there is a genuine need for the nominator to employ the identified person to work in the nominated position under their direct control.
Mr Anilkumar Vihabhai Patel appeared before the Tribunal on behalf of Shayona Business Pty Ltd, the applicant, on 1 June 2023 to give evidence and present arguments. As this was a combined hearing the Tribunal also received oral evidence from Mr Chiragkumar Pravinbhai Barot and Mrs Falguni Chiragkumar Barot the primary nominee and related visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
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.
The Tribunal has considered information provided in the application form and supporting documents in relation to these criteria and finds that the application:
·was made using the approved form 1395 (Internet);
·identify the position of Facilities Manager;
·identify the person, Mr Barot in relation to the position;
·identify the occupation of Facilities Manager in relation to the position,
·identify the subclass 187 and Direct Entry stream to which the nomination relates;
·was accompanied by the fee mentioned in reg 5.37; and
·included a written certification by the nominator stating the nominator had not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act)
·was accompanied by nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb)
·was made before 16 November 2019.
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 nomination application dated 17 August 2019 the applicant answers “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 other circumstances which might reasonable be considered adverse information?”.
At the hearing the applicant stated there is no adverse information known to Immigration that they are aware of. There is nothing before the Tribunal that contradicts this sworn evidence.
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 South Australia, the relevant occupation is Facilities Manager, and the date of application is 17 August 2019.
The nomination application certifies that the nominated person holds relevant occupation licenses and registrations pertaining to the position.
At the hearing Mr Patel told the Tribunal that there were no licenses, registrations or memberships relevant to the position at the time of application.
There is nothing before the Tribunal that suggests there were any applicable licenses, registrations or memberships at the time of application.
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 Patel told the Tribunal that the applicant has not breached any employment laws including non-compliance with any Australian agreements, awards and conditions under Australia’s industrial relations system.
While the Tribunal had some concerns in relation to the contract of employment between the applicant and the nominee, post hearing submissions received from the applicant have included an updated employment contract dated 6 June 2023 which has allayed those concerns by ensuring the minimum National Employment Standards are met.
The applicant certified on the application form that the nominated person’s contract of employment will comply with all requirements imposed by Commonwealth, State or Territory law relating to employment including, if applicable, the National Employment Standards.
The contract of employment dated 6 June 2023 provided to the Tribunal includes the minimum standards contained in the National Employment Standards.
There is nothing before the Tribunal to suggest the applicant has not complied 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.
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.
Mr Patel told the Tribunal that he is not aware of any debts of the applicant arising from nomination training contribution charges or penalties for underpayments.
There is nothing before the Tribunal that suggests any such debts are due to the Commonwealth.
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 provided ASIC and ATO documents relating to the business actively and lawfully operating in Australia.
Mr Patel told the Tribunal that he is not aware of any breaches of Commonwealth or State laws by the applicant.
The Tribunal is also unaware of any breaches of Commonwealth or State laws by the applicant.
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.
The applicant has provided an organisation chart, financial statements and company references all of which indicate the business is not involved in labour hire activities.
Mr Patel told the Tribunal that the applicant is not involved in labour hire activities. There is nothing before the Tribunal to suggest this is not the case.
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 nomination application dated 17 August 2019 identifies that the applicant needs Mr Barot to work in the position of Facilities Manager under the nominator’s direct control.
The Tribunal must also be satisfied that the need is genuine.
The position and occupation are both described as Facilities Manager. In ANZSCO, the Facilities Manager description states: “Organises, controls and coordinates the strategic and operational management of buildings and facilities in public and private organisations to ensure the proper and efficient operation of all physical aspects of a facility, to create and sustain safe and productive environments for occupants”.
The application provides a brief description of the business operation:
Shayona is a family-owned contracting business in the commercial cleaning and building maintenance industry in Greater Adelaide. The company has a history of winning small to medium tenders in and around Adelaide using his sales and people skills to secure contracts in the servicing business.
In providing evidence to determine market salary rate the nomination application refers to the Cleaning Services Award 2010 [now 2020] (the Award) at Cleaning Service Employee Level Three (CSE 3). The Award relates to cleaning and routine repair work or building maintenance (of a non-trade nature) in or about the facility. At CSE 3 level the role includes co-ordinating the work of CSE 1s and CSE 2s and generally superintend the activity of all the building cleaners as a building supervisor or manager.
Given the size and nature of the business, the Tribunal is satisfied that there is a genuine need for the applicant to have the identified person to be employed in such a position. The question of whether the tasks correspond to the specified operation are considered later in relation to reg 5.19(9)(j).
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.
The Employment Contract dated 6 June 2023 states, inter alia: “We propose that you commence work with us on a full time (38 hours per week) upon grant of your subclass 187 visa... The position is available for a minimum of 2 consecutive years from the date of grant of 187 visa. There are no restrictions to extend the period of this employment”.
The Employment Contract lists the pay as $1,593.26 per week [$82,850 per annum] plus superannuation. and will be according to the Cleaning Service Employee Award 2010 at Cleaning Service Employee Level Three (CSE 3).
The nomination application identifies the Award [Cleaning Service Employee Award] as the basis for determining the annual market salary rate for the occupation. The application goes on to describe how the Award was used to determine the market salary rate: “The qualification and work experience of the nominee commensurate with the qualification and experience specified for the occupation in the ANZSCO. Based on this and the industrial award the annual salary is determined”. Post hearing submissions include an update to the annual market rate based on Payscale “Facilities Manager Salary in Adelaide South Australia” as at 7 June 2023 which was an average base salary of $82,850 per annum.
The applicant has been employed full time over the last 4 years and has been paid. During this period the business has been able to trade solvently.
Based on the evidence the Tribunal finds that the nominee will be employed full-time for at least 2 years; the terms and conditions of the nominee’s employment will not exclude the possibility of extending the period of employment; and 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.
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 ($250,000), the requirements of reg 2.72(15) must be met.
The Tribunal is satisfied that the annual market salary rate for the nominated occupation is calculated according to the Award in the absence of an Australian equivalent as a minimum together with the average base salary using Payscale of $82,850. This is in accordance with the instrument IMMI18/033. For these reasons the requirements of reg 2.72(15)(c) are met. The Cleaning Services Award 2020 Level 3 cleaning services employee classification including leading hand allowance is $54,594 per annum.
The Employment Contract dated 6 June 2023 provides for an annual salary of $82,850 plus superannuation.
The rate, excluding any non-monetary benefits, for the occupation is $82,850 which is not less than the TSMIT which is $53,900. For these reasons the requirements of reg 2.72(15)(d) are met.
The Tribunal is satisfied that the nominee’s annual earnings in relation to the occupation of $82,850 will not be less than the rate for the occupation of $82,850. For these reasons the requirements of reg 2.72(15)(e) are met.
The Tribunal is satisfied that nominee’s annual earnings of $82,850, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT of $53,900; For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal 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 dated 14 August 2019 refers to the eleven minimum National Employment Standards in the Fair Work Act 2009 and contains a standard set of terms and conditions applicable to this employment in Australia.
Therefore, the Tribunal finds the employment conditions (other than in relation to earnings) that will apply to the identified person are no less favourable to those that apply, or 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 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).
The Tribunal finds:
·The instrument IMMI 18/037 sets out the postcodes specified by the Minister as Regional Australia. All postcodes in South Australia are specified as Regional Australia. The position is located in South Australia.
·The business operated by the nominator is located in South Australia.
·The applicant provided a submission dated 15 August 2019 describing the labour market testing undertaken to fill the position and included advertising to fill the position. Mr Patel told the Tribunal that it has not been possible to fill the position with an Australian citizen or permanent resident who is living in, or would move to, the local area concerned. This is supported by a declaration of satisfaction from the Regional Certifying Body dated 26 November 2019.
·The tasks to be performed in the position of Facilities Manager, according to the position description provided to the Tribunal, correspond to the tasks of an occupation of Facilities Manager ANZSCO Code 149913 which is specified in the relevant legislative instrument LIN 19/047. There are no additional applicability requirements for that occupation in this instrument.
·The regional certifying body as set out in the instrument IMMI 18/037 located in the same State and Territory as the position, South Australia, and with responsibility for the local area has advised the Minister that they are 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 2571

10 July 2023

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