SJD Property Group Pty Ltd (Migration)

SJD Property Group Pty Ltd (Migration) [2020] AATA 596 (28 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SJD Property Group Pty Ltd
CASE NUMBER:  1723110
DIBP REFERENCE(S):  BCC2016/4033729
MEMBER:Wan Shum
DATE:28 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 February 2020 at 2:48pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – training benchmarks – evidence unclear as to delivery and recipient of training – requirements of legislation when application was made – payment to industry training fund – structure of parent and subsidiary entities – duties of nominated position – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)(B), (9)
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 Immigration on 11 September 2017 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The application for approval was made by SJD Property Group Pty Ltd on 30 November 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, SJD Property Group Pty Ltd (the nominator) has applied for approval of a nomination under the Direct Entry Nomination stream for the position of Group General Manager. The person identified for the position was Mr Lizhou Shi, the nominated person.
The delegate refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(i)(B) of the Regulations finding that insufficient evidence had been provided to assess whether the training benchmarks had been met.
The nominator has sought review of that decision and was represented in relation to the review by a registered migration agent.
Mr Haiyi Zhao appeared on behalf of the nominator before the Tribunal on 14 January 2020 to give evidence and present arguments.
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 nominator meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The nominator carries out property development projects of residential apartments in various suburbs in Sydney. It is one of a group of companies which are 100% owned by Mr Jiandong Shi who is a Director and Chairman of the Board of Directors. He is the father of the nominated person for the position.
The application form for the nomination under the Direct Entry stream was completed with ‘Group General Manager’ as the position to be filled, and occupation of ‘Corporate General Manager’ (ANZSCO code 111211). Under employment and training details, the gross payroll expenditure of the business/organisation for the past 12 months was given as $500,417 and the gross expenditure on training of Australians was said to amount to $9,999. The supporting evidence provided to the Department consisted of a copy of an invoice issued by IFA Australia on 9 November 2016 to Allen Zhao of SJD Property Group and evidence of payment on 14 November 2016.
In assessing whether r.5.19(4)(h)(i)(B) was met, the delegate noted that the nominator’s business has been operating in Australia for more than 12 months so needed to meet r.5.19(4)(h)(i)(B)(I) by reference to the training benchmarks specified in the applicable instrument. There was no evidence that the nominator met Training Benchmark A, which requires expenditure amounting to at least 2% of payroll to an industry training fund. As to whether Training Benchmark B was met, the delegate considered that the invoice and receipt were not sufficient evidence to demonstrate that 1% of payroll was spent on training an Australian employee. This was because it was unclear when the training had been conducted and completed, what type of training it was and who had undertaken the training, nor whether they were an Australian citizen or permanent resident. Accordingly, the delegate refused to approve the nomination finding that r.5.19(4)(h)(i)(B) was not met.
On review, additional information was provided including a copy of the training materials, and a photocopy of Jiannan Zhao’s passport. It was submitted that Allen (Jiannan) Zhao, the current finance manager, was the person who attended the training and it was his name that appeared on the invoice. In relation to the course content, it was submitted that the formal course of study was set out in the invoice “VIP Package – include 11 main courses and 13 elective courses”. Lastly, it was submitted that a detailed organisation chart had been provided to the Department which included Mr Allen Zhao’s name, position and status, and that sufficient information had been provided for a favourable finding.
Before the Tribunal, it was submitted that the requirements were met at the time the application was lodged but that, even if the Tribunal considered it was appropriate to consider whether r.5.19 was met “as if it was lodged at a time when the Tribunal reviews the application”, then the training obligation no longer exists given the change to the legislation. The current version of r.5.19(9) was set out and it was submitted that the training requirement was replaced with the introduction of the Skilling Australians Fund Levy which came into effect on 12 August 2018, so that there is no training benchmark. However, as the Tribunal is undertaking review of the original application as at the date of its decision, it needs to consider the legislation that existed when the nomination was made and not the amended version of r.5.19. Given the version of r.5.19 that existed at the time the nomination was made is the relevant version, it is necessary for the nominator to present evidence that it currently meets the training obligations that would have applied to a nomination made at that time. Having regard to the lodgement date, the relevant instrument is IMMI 03/030 which relevantly requires that:
The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.
The training benchmarks for an established business are:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The representative had made a request that the Tribunal make a finding on whether the training benchmarks were met at the time the application was lodged on the information presented at that time. Having considered the evidence presented, it considers that while there was some information before the Department that supported a conclusion that Training Benchmark B was met, it does appear to the Tribunal that the information at the time was incomplete in that it was not clear who the training was for. This is because while there was a name on the invoice, it was not clear that the training was to be given to that person. Given this, it was unclear whether the person who undertook the training was an Australian citizen or permanent resident, and in any case, evidence was not provided of this such as a copy of their passport. It does appear to the Tribunal that these matters could easily have been addressed by the nominator had the Department officer chosen to request additional information at the time, which he or she did not. Instead, they have had to wait for a further 2 years and have needed to provide recent information in relation to this requirement.
In this regard, the Tribunal allowed further time to present supporting information to consider whether the training benchmarks have been met. It has also given careful consideration as to whether the position is genuine, given the relationship between the owner and the nominee and the position having been unfilled for a number of years.
SJD Property Group Pty Ltd is the sponsoring employer as indicated on the nomination application form and the employment contract. According to the submissions and oral evidence given, due to a recent restructure of the SJD Group of entities, SJD Investment Holdings Pty Ltd has become the ultimate holding company in Australia under which all SJD Group SPV entities will sit. The financial statements and ATO tax returns are consolidated and prepared for SJD Investment Holdings Pty Ltd as the parent entity. The wholly owned (100%) subsidiary entities (herein referred to as “SJD Group”) include the nominator and the following companies:
·SJD St Leonards Pty Ltd
·SJD Epping Pty Ltd
·SJD Double Bay Pty Ltd
·SJD DB2 Pty Ltd
During the hearing, Mr Zhao explained that he is one of the Directors of the nominator (and also the parent company) and, when initially set up, the nominator was to focus on purchasing land for the development of residential apartments. There has been a restructure of the related entities following advice obtained from KMPG to restructure the businesses. They are now setting up separate entities for each development rather than having all land acquisitions under the Property Group (ie the nominator).
According to the information presented, the nominee will be required to work as the Group General Manager overseeing all activities of the parent entity as well as all SPV entities. It was submitted that a full time Group General Manager will be required to:
·Provide overall direction and management to all operations and functions of the Australian business and its subsidiary companies
·Implement and devise a corporate restructure strategy to ensure that all company assets (tangible and in-tangible) are smoothly transitioned over to the ultimate holding entity (although at the hearing, the representative indicated that this had already occurred)
·Ensure the effective implementation of the parent company’s strategic plan so as to meet agreed targets while ensuring adaptive management and performance standards
·Directs, coordinates and manages the work of internal divisions including the functions of Finance, Administration and Project Management, Human Resources and Sales and Marketing
·Answer directly to the Board of Directors of the parent entity reporting on the overall performance on the overseas subsidiary company
·Management and approval of project design, engineering strategies, financial budgeting and the daily operations of the local Australian entity
·Participate in feasibility studies and project forecasting
·Attend project progress inspections with contractors and sub-contractors where required
·Liaising with external banking or financial institutions and establish funds management arrangements
·Supervision of design, subcontracting and purchasing of materials/equipment with consideration to the inputs from the Finance team
·Approval of relevant sales and marketing strategies devised by the Sales and Marketing team
·Review of contracts, preferred supplier agreements, tenders and the signing of relevant legal documents as the authorised representative of the company
·Supervision, control and management of overall project costs
·Participate in the recruitment of key management personnel
·Identify growth and revenue generation opportunities
·Develop and maintain strong strategic alliances with customers, major suppliers, technology providers and joint venture partners
Mr Zhao also gave oral evidence broadly consistent with the above adding that the General Manager is to have oversight of the businesses including financial matters, making sure finances are in order, make recruitment decisions and set KPIs and determine bonuses for employees. The Tribunal considers the above duties to be consistent with the ANZSCO description of Corporate General Manager and the unit group of General Managers. However, it did have some concerns as to whether the position would be directly employed by the nominator or the parent company, given the duties listed appear to indicate the position is based in the parent company. A position in an entity associated with the nominating business but not within the nominating business itself may not be under the nominator’s direct control as required.
Mr Zhao confirmed at the hearing that the plan continues to be that the nominator will continue to operate and be the direct employer of the position of Group General Manager, although acknowledged that the position would be working across all SJD Group businesses. In this regard, the Tribunal requested up-to-date financial information for the nominator, noting that it was unclear on the information presented that the nominator was actively operating following the restructure and successful completion of the Lane Cove project.
Given the changes since the nomination was lodged, the Tribunal has given careful consideration to the role of the General Manager to be directly employed by the nominator. It has had regard to the genuine vacancy submission letter from 2016, which was provided to the Department at the time the nomination application was lodged; the Deloitte Economic Contribution for SJD Group dated January 2018 and Project information (including valuation reports) on SJD’s current Double Bay Projects.
The Tribunal notes that the Deloitte Economic Contribution study was requested by the representative to report on the economic contribution of Mr Jian Dong Shi’s business activities and the positive impact these business activities have had on the NSW economy. Mr Jian Dong Shi is the owner of SJD Group. It does not comment on the requirement for a General Manager so the Tribunal does not accept that it “is evidence that SJD requires the services of a General Manager to oversee the business expansion operations of the parent entity and all subsidiary SPV companies for each project.” The Tribunal accepts however that the study demonstrates the size and scale of the residential projects that have already been completed and those in progress.
As to whom had been carrying out the duties of the Corporate General Manager, which appears as vacant on the current organisation chart, Mr Zhao explained that Gary Guo Xu and himself had been sharing the responsibilities. However, he stated that this was not sustainable as Mr Guo Xu spends 50% of his time in Australia and the other time in China, he is in his 60s and is not looking to continue active involvement in day-to-day operations but will have more of a big picture, oversight role. Mr Zhao’s own role is that of the project director, or the “delivery guy”, so while he was undertaking some of the duties of the Corporate General Manager, he is to concentrate on the delivery of projects. The Tribunal notes that his position is listed as Deputy General Manager in the most recent organisation chart provided and in the Capability Statement from around 2015/16. In this document, Mr Gary Xu is named as the Managing Director. In addition, a reference letter from the Director of Lighthouse Project Group dated 9 March 2019 in respect of the nominator refers to Mr Zhao as the Deputy General Manager and Mr Gary Xu as the General Manager of SJD. In the letter, Mr Jorgensen explains that he was the project manager reporting to Mr Zhao as the Deputy GM as well as dealing with Mr Xu, the General Manager.
Following the hearing, the Tribunal has been provided with financial statements for the year ending 30 June 2018 and 30 June 2019 of the nominator, as well as BAS statements for the period July 2017 to July 2019 showing zero sales in some months but then up to $51 million in a single month (December 2017). The financials of the business indicate that the profits achieved over the past two financial years were $341,932 in FY2019 and $21,178,590 in FY 2018 compared to -$3,332,579 in FY 2017. Similarly, the income has also fluctuated over the past 3 years from $75,715 in 2017, increasing substantially to $26,127,376 in 2018 and then dropping to $1,695,025 in FY2019. These figures appear to reflect the completion of the Lane Cove residential development in December 2017, with the final occupation certificate issued in February 2018. While Mr Zhao said that there will be further sales, it appears that the sales income of the nominator will continue to reduce due to the upcoming projects in St Leonards and Double Bay coming under separate SJD Group companies. Nevertheless, the nominator continues to employ a number of people whose positions are set out in the organisation chart provided, with the payroll for February 2019 to February 2020 amounting to $448,528.63. Having considered the oral and written evidence, the nominator appears to be actively and lawfully operating a business.
In terms of the training benchmark, the Tribunal has been provided with an invoice showing payment to TAFE of $9,000 for the 186 Employer Nomination Scheme (ENS) Visa Training Benchmark A Contribution: TAFE NSW: Building & Construction Scholarship Fund on 18 February 2020. As the payroll for February 2019 to February 2020 was $448,528.63, the Tribunal is satisfied that the amount of $9,000 is more than 2% of the payroll and that it meets training benchmark A.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958 (the Act). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The material on the departmental file is that the application was made on form 1395, or 1395 (Internet) and accompanied by the fee prescribed in r.5.37. The application identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The position and occupation was identified as Corporate General Manager.
As noted above, the Tribunal does have some concerns as to whether the position would be directly employed by the nominator, having regard to the restructure of the SJD Group companies since the application was lodged. The organisation chart shows the position of General Manager as reporting to the Managing Director, with the Office Manager, Deputy General Manager and Group Financial Controller reporting directly to the General Manager. All the identified employees in the organisation chart continue to be paid wages by the nominator.
The submissions provided post-hearing confirm that the position of General Manager is with the nominator.
The Tribunal notes that while the nominator is now a subsidiary of SJD Investment Holdings Pty Ltd, all SJD companies are 100% owned by Mr Jian Dong Shi. The board of directors of both the nominator and the parent company are the same. Given this, it is prepared to accept that the position will be effectively under the nominator’s direct control, while being required to carry out duties across all SJD Group businesses and report to the Board of Directors of the parent company, being the same directors as the nominator.

A written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act was provided.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Information before the Tribunal includes business activity statements, financial reports, company tax returns, organisational chart and an ASIC current and historical company extract and oral evidence given at the hearing.
The Tribunal finds that the nominator is actively and lawfully operating a business in Australia, specifically a property development business in Sydney, and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour-hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. There is no information to indicate that it is involved in labour-hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Having considered the terms of the employee contract and the financials of the business to date as well as the group structure and continuing projects of the related entities, the Tribunal finds that the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
According to the organisation chart provided and the evidence of Mr Zhao, there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, with two parties sharing responsibilities to date. The position is to be filled by the owner’s son.
In terms of whether the salary payable for this position of $200,000 would be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, the Tribunal has been presented with external market salary data from the PayScale website, Job Outlook and Seek advertisements.
According to the PayScale website, the average pay for a Corporate General Manager in Australia around January 2020 was $116,857, with the salary range between $68K and $204K. The Seek advertisements are for roles in Sydney, one with a Design firm with a salary arrange of $180K to $210K and the other as a General Manager Finance for a construction and development business, indicating a salary range of $150K to $199K. It was submitted that Job Outlook did not indicate weekly earnings for this occupation but that the duties to be performed by the nominee were in line with the tasks set out there. It was further submitted that the business has determined the salary in accordance with factors such as the number of post qualification relevant years of experience possessed by the nominee. The Tribunal has not considered here whether the nominee has the skills and experience required, which will be done when the application for the related visa is assessed. It notes as mentioned by the representative that a salary of $200,000 would have enabled the applicant for the related visa to take advantage of exemptions for language and skill related requirements. This is no longer possible as a new application will need to be made as the nominee was not in a position to make an application for review of the visa refusal, being offshore at the time.
In any case, having considered the information presented, the Tribunal considers that the salary payable would be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to indicate that the nominator has not complied with workplace relations laws.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but for a business not located in regional Australia:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met.
According to the information presented, the nominee will be required to work as the Group General Manager overseeing all activities of the parent entity as well as all SPV entities. It was submitted that the Group General Manager will be required to:
·Provide overall direction and management to all operations and functions of the Australian business and its subsidiary companies
·Implement and devise a corporate restructure strategy to ensure that all company assets (tangible and in-tangible) are smoothly transitioned over to the ultimate holding entity
·Ensure the effective implementation of the parent company’s strategic plan so as to meet agreed targets while ensuring adaptive management and performance standards
·Directs, coordinates and manages the work of internal divisions including the functions of Finance, Administration and Project Management, Human Resources and Sales and Marketing
·Answer directly to the Board of Directors of the parent entity reporting on the overall performance on the overseas subsidiary company
·Management and approval of project design, engineering strategies, financial budgeting and the daily operations of the local Australian entity
·Participate in feasibility studies and project forecasting
·Attend project progress inspections with contractors and sub-contractors where required
·Liaising with external banking or financial institutions and establish funds management arrangements
·Supervision of design, subcontracting and purchasing of materials/equipment with consideration to the inputs from the Finance team
·Approval of relevant sales and marketing strategies devised by the Sales and Marketing team
·Review of contracts, preferred supplier agreements, tenders and the signing of relevant legal documents as the authorised representative of the company
·Supervision, control and management of overall project costs
·Participate in the recruitment of key management personnel
·Identify growth and revenue generation opportunities
·Develop and maintain strong strategic alliances with customers, major suppliers, technology providers and joint venture partners
The Tribunal considers the above duties reflect the activities of the nominator and SJD Group of residential property development and are consistent with the ANZSCO description of Corporate General Manager and duties outlined under the Unit Group of General Managers.
The Tribunal finds on the information before it that the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument, noting that there are no additional applicability requirements for that occupation.
In terms of the training benchmark, for the reasons set out above, the Tribunal is satisfied that the amount of $9,000 is more than 2% of the payroll and that it meets training benchmark A.
The Tribunal finds that the requirements of r.5.19(4)(h)(i) are met, and therefore r.5.19(4)(h) has been met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.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.
Wan Shum
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2020] AATA 596

28 February 2020

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Immigration

Administrative Law

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