Terrigal Operations Pty Ltd (Migration)

Terrigal Operations Pty Ltd (Migration) [2023] AATA 4224 (5 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Terrigal Operations Pty Ltd
REPRESENTATIVE:  Mr Satyaprakash Shukla (MARN: 2013945)
CASE NUMBER:  2006883
HOME AFFAIRS REFERENCE(S):          BCC2019/3945605
MEMBER:Mary Sheargold
DATE:5 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 October 2023 at 4:17pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry stream – Cook – genuine need – difficulty in recruiting and retaining suitable staff – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 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 19 March 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 9 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 the applicant failed to demonstrate a genuine need to employ the nominee in the nominated position under its direct control.
Mr Patrick Gallagher, the sole director and shareholder of Terrigal Operations Pty Ltd (the applicant) appeared before the Tribunal on 14 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the company’s operations manager, Angela Gallagher.
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.
The applicant has kept the Tribunal updated regarding its applications since they were lodged in 2020. On 1 April 2022, the Tribunal received the following documentary evidence from the applicant’s representative:
·a letter outlining the genuine need for the nominated position for the Terrigal Hotel signed by Angela Gallagher (undated);
·a detailed financial report for Terrigal Operations Pty Ltd trading as Terrigal Hotel for the financial year ended 30 June 2021 dated 12 January 2022; and
·copies of business activity statements (BAS) for June to September 2021.
On 28 February 2023, the Tribunal received copies of BAS for the applicant’s business covering the period from October 2021 to December 2022.
On 13 July 2023, the Tribunal wrote to the applicant pursuant to s. 359(2) of the Act, inviting it to provide updated submissions addressing the criteria in reg 5.19(4) and reg 5.19(9) of the Regulations. The Tribunal provided examples of the kind of information that would assist it in assessing if the applicant met the criteria. The applicant was requested to provide this information by 27 July 2023.
On 27 July 2023, the applicant’s representative provided the following documents in response to the Tribunal’s request:
·detailed financial statements for the Terrigal Hotel Unit Trust for the year ended 30 June 2020 dated 5 February 2021;
·detailed financial statements for Terrigal Operations Pty Ltd trading as Terrigal Hotel for the year ended 30 June 2020 dated 5 February 2021;
·detailed financial statements for Terrigal Operations Pty Ltd trading as Terrigal Hotel for the year ended 30 June 2021 dated 12 January 2022;
·detailed financial statements for Terrigal Operations Pty Ltd trading as Terrigal Hotel for the year ended 30 June 2022;
·a letter outlining the genuine need for the position from Angela Gallagher dated 26 July 2023;
·an undated copy of the organisational chart for the applicant’s business;
·letters regarding advertisement from Angela Gallagher dated 1 August 2022 and 4 May 2022;
·a letter titled “evidence of equivalent terms and conditions of employment no equivalent worker” signed by Angela Gallagher dated 1 August 2022;
·a copy of a letter explaining the structure of Gallagher hotels signed by Angela Gallagher dated 1 August 2022; and
·a copy of the contract of employment for Saroj Lama, undated.
In reaching its findings, the Tribunal has reviewed and considered all of these documents, as well as the documents in the Departmental file and the evidence given by the witnesses at the hearing.
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. In this case, the application was made on 9 August 2019.
The Tribunal has reviewed the documentation in the Department’s file and is satisfied that the application was made on the approved internet form. Within that form, the applicant has provided the relevant s.245AR(1) certification, the position has been identified, a person and an occupation relating to the position have been identified, and the visa subclass and stream to which the nomination relates have been identified. The Department’s letter to the applicant dated 9 August 2019 confirms that the application fee has been paid.
The application identified the annual turnover for the business to be $6,521,000. According to Departmental records, on 9 August 2019, the applicant paid $3,000 accompanying its application form. Per r.5.37(3)(b) of the Regulations, there is no application fee for applications made in the RSMS stream. Therefore, the $3,000 paid represents the Skilling Australians Fund levy for nominations for RSMS visas, being the one off payment amount for businesses with an annual turnover of less than $10,000,000.
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.
There is no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or a person associated with it.
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 New South Wales, the relevant occupation is Cook, ANZSCO 351411, and the date of application is 9 August 2019.
The Tribunal is not aware of any mandatory licensing, registration, or professional memberships required for persons to work as Cooks in New South Wales.
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 to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth 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.
As set out above, the Tribunal is satisfied that the applicant paid the required training contribution charge at the time the application was made. Therefore, no training contribution debts have accrued.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The applicant has provided the Tribunal with copies of recent BAS, financial statements and other information relating to its business operations. Based on the documentation before it, the Tribunal is satisfied that the applicant is actively, lawfully and directly 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.
The Tribunal has reviewed the most recent employment contract between the applicant and the nominee, and notes that his usual place of work is recorded as the Terrigal Hotel, 176 Terrigal Drive, Terrigal, New South Wales. The Tribunal notes that this is the address of the applicant’s business. Based on the evidence available at review, the Tribunal is satisfied that the nominated position of Cook is a permanent, full time position within the applicant’s business and does not involve any on-hiring to any unrelated business.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply.
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 the nominee to be employed as a Cook within the applicant’s hotel business. Prior to the hearing, Angela Gallagher provided several letters to the Tribunal outlining the genuine nature of the Cook positions available at the Terrigal Hotel. The Tribunal notes that this is one of 3 applications made concurrently to employ 3 full time cooks for this particular business. At the hearing, Mr Gallagher confirmed that while he is the sole director and shareholder of the business, he does not work within the business day to day, but that Angela manages all the operations in Terrigal.
At the hearing, Angela Gallagher’s evidence is that the Terrigal Hotel has had continued struggles to recruit and retain suitable staff given its regional NSW location. She told the Tribunal that her kitchen staff are often approached by rival local businesses and offered higher paid work, but the one time a cook did actually leave, they returned to the Terrigal Hotel within a week. Both Angela and Patrick Gallagher emphasised to the Tribunal that it has always been difficult to recruit cooks for the hotel in Terrigal, but that in the aftermath of the Covid lockdowns, it has become even more difficult. They emphasised to the Tribunal how imperative it was to retain the nominee, as well as the 2 other cooks they have nominated, within their business.
The Tribunal accepts that the nominee and the 2 other cooks have worked within the applicant’s business in Terrigal for at least 5 years each now, and that throughout their tenure they have played a pivotal role in the success of the business. Ms Gallagher told the Tribunal that they would serve 500 to 600 covers on a Friday or Saturday night, and that because they fully comply with all their employment law obligations and operate a 7 day a week service, they need a large kitchen staff to ensure all shifts are covered adequately.
The Tribunal has no hesitation in finding that the nominated position is a genuine, full time position as a Cook within the applicant’s business, continuing the work the nominee has performed in that role for over 5 years.
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 states that the nominee will be employed on a full time basis for at least 38 hours, 5 days per week. The period of employment is ongoing since 6 December 2020. There is no evidence to suggest the nominated position is not available for at least 2 years, and there is no express exclusion of extending the period of employment given it is an ongoing contract. Therefore, the Tribunal is satisfied that the requirements in rr 5.19(9)(e) and(f) are met.
To determine the annual market salary rate, the applicant has provided evidence of the calculations made by reference to the Hospitality Industry (General) Award 2020. The nominee’s salary of $71,626.88 plus superannuation is above the relevant Award rate of $995 per week, or an annualised salary of $64,675 for a Level 4 Cook (tradesperson) specified in the Award. The applicant has provided copies of recent BAS and its bank statements to show the significant quarterly turnover within the business. At the time the application was made, the applicant’s business was turning over in excess of $6,000,000 per annum. Based on the evidence provided, the Tribunal is satisfied that the applicant’s business has the capacity to pay the applicant at the annual market salary rate for at least 2 years.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to 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).

Section 5 in IMMI 18/033 specifies the annual earnings for the purposes of r.2.72(15)(b) to be $250,000. 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.
As set out above, the applicant has provided evidence with its application supporting the method used to determine the annual market salary rate for the nominated position of Cook, being a reference to the relevant modern Award. The Tribunal is satisfied that the calculation of the nominee’s salary of $71,626.88 plus superannuation has been determined in the manner required. For these reasons the requirements of reg 2.72(15)(c) are met.
The TSMIT is $53,900, so the salary of $71,626.88 per annum plus paid overtime that has been offered to the nominee exceeds this amount. For these reasons the requirements of reg 2.72(15)(d) are met.
Again, as set out above, the Tribunal is satisfied that this remuneration arrangement gives to the applicant a salary in excess of the Award rate for a Cook working under the Hospitality Industry (General) Award 2020. For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee has not been offered any non-monetary benefits as part of the employment contract. Therefore, the proposed remuneration represents a cash figure. Therefore, the annual earnings will still be above the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
The Tribunal is satisfied that there is no information before Immigration to indicate that the annual market salary rate for the nominated position is inconsistent with Australian labour market conditions relevant to the occupation of Cook. 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 Tribunal has considered the terms and conditions of the nominee’s employment set out in the employment contract, and notes that the nominee’s employment conditions appear to accord with the requirements set out in the National Employment Standards.
Therefore, based on the evidence before it, the Tribunal is satisfied that the nominee’s terms and conditions of employment 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.
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 position is located at the applicant’s hotel business in Terrigal, New South Wales, 2260. Schedule 2 to IMMI 18/037 specifies postcodes between 2256 and 2263 to form part of regional Australia. Therefore, the requirements in r.5.19(12)(a) and (b) are met.
The applicant has provided detailed evidence regarding its efforts to recruit for the Cook positions within its business. There is no evidence to suggest any Australian citizen or permanent resident living in, or who would like to move to, Terrigal, was able to fill the position. Therefore, the requirement in r.5.19(12)(c) is met.
The ANZSCO Dictionary listing for Cook includes the following tasks:
·examining foodstuffs to ensure quality
·regulating temperatures of ovens, grills and other cooking equipment
·preparing and cooking food
·seasoning food during cooking
·portioning food, placing it on plates, and adding gravies, sauces and garnishes
·storing food in temperature controlled facilities
·preparing food to meet special dietary requirements
·may plan menus and estimate food requirements
·may train other kitchen staff and apprentices; and
·prepares, seasons and cooks food in a dining or catering establishment.
The applicant provided a position description for the nominated position within the example job advertisements it provided to the Department. It states that the Cook within the business will be responsible for:
·Food preparation and plate presentation;
·Flexible approach in adapting to guest requests;
·Ensuring there are adequate levels of stock for service;
·Maintenance and cleanliness of kitchen equipment;
·Preparing and storing food in accordance with hygiene legislation; nad
·Working in a team environment, ensuring timely service and a high standard of presentation of our hotel product.
The Tribunal has considered the tasks identified by the applicant compared with the tasks identified in the ANZSCO dictionary and is satisfied that, whilst not identical, they do correspond to one another. In addition, the Tribunal is satisfied that no additional applicability requirements for this position have been identified. Therefore, the requirements in r.5.19(12)(d) and (e) are met.
On 1 November 2019, a representative of Regional Development Australia – Central Coast NSW Inc, provided a completed Form 1404 advising that the nomination satisfied the requirements for a RSMS Direct Entry stream application on the basis that the nominee would be paid at least the annual market salary rate for the nominated occupation, that there was a genuine need for the identified person to be employed in the position under the direct control of the nominator, and that the position could not be filled by an Australian citizen or an Australian permanent resident who was living in or would move to the local area concerned. Therefore, the requirement in 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.
Mary Sheargold
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 4224

5 October 2023

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