THE TRUSTEE FOR GEN2 GROUP DISCRETIONARY TRUST (Migration)
[2023] AATA 1585
•1 June 2023
THE TRUSTEE FOR GEN2 GROUP DISCRETIONARY TRUST (Migration) [2023] AATA 1585 (1 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Gen2 Group Pty Ltd as the Trustee for Gen2 Group Discretionary Trust
REPRESENTATIVE: Mr Mitchell Simmons
CASE NUMBER: 1921814
HOME AFFAIRS REFERENCE(S): BCC2018/843448
MEMBER:Katie Malyon
DATE:1 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 01 June 2023 at 1:58 pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – cook – financial capacity to employ nominee for two years – extensive updated and current financial information and genuine and credible oral evidence from director and nominee – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(4)(d)CASE
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31STATEMENT 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 26 July 2019 to refuse the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Gen2 Group Pty Ltd ACN 608 623 963 as the Trustee for the Gen2 Group Discretionary Trust T/A Empress Restaurant ABN 20 409 961 818 (the Trustee), applied for approval on 21 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets all of 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: reg 5.19(5).
In this case, the Trustee has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the Trustee’s nomination did not satisfy reg 5.19(4)(d) of the Regulations because there was insufficient information to demonstrate that the Trustee had the financial capacity to employ the nominee, Chinese national Mr Wing Fung Tang, in the occupation of Cook ANZSCO 351411 at the salary of $55,130 per annum for at least 2 years.
Background
The Trustee operates the Empress Restaurant in Toorak Gardens in Adelaide. It has been operating the business since December 2016. Based on evidence lodged with the Tribunal, there are 4 full-time Cooks, 3 of whom are Australian citizens as well as 9 part-time Cooks, 5 of whom are Australian citizens or permanent residents and 2 casual Cooks, one of whom is an Australian citizen and the other is a permanent resident. In total, the business has 51 employees. Two of the Directors of the Trustee, both of whom are Australian citizens, also work in the Empress Restaurant.
On 17 August 2022, the Tribunal wrote to the Trustee under s 359(2) of the Migration Act 1958 (the Act) requesting it provide updated and current information about the business and the nominated position. In response, the Company provided a range of documentation.
Having perused the documentation provided in response to the Tribunal’s s 359(2) letter, the Tribunal invited the Trustee to attend a hearing. Along with its invitation to attend the hearing, the Tribunal requested the Trustee provide additional documentation including recent Tax Returns lodged with the Australian Taxation Office (ATO) as well as recent Business Activity Statements (BAS) lodged with the ATO. These documents were provided by the Trustee on 1 March 2023.
Hearing - 8 March 2023
The Trustee’s Director and its Chef, Mr Eric Wong, appeared before the Tribunal on 8 March 2023 to give evidence and present arguments on behalf of the Trustee. The Tribunal also took evidence from the nominee Mr Tang. The Tribunal found both Mr Wong and Mr Tang to be genuine and credible witnesses. The Trustee was represented in relation to the review by its immigration lawyer Mitchell Simmons. The representative also attended the hearing.
After the hearing, the representative provided further documentation for consideration by the Tribunal including a detailed submission, a copy of the signed Trust Deed dated 8 October 2015, an updated Organisation Chart, evidence of the current market salary for a Cook in Adelaide and a Statutory Declaration from the nominee Mr Tang sworn on 16 March 2023.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate at the time of her decision. It also acknowledges that the representative has, helpfully, fully complied with the Tribunal’s Practice Direction in relation to submitting documentation to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets all of the requirements for approval of its nomination under the Direct Entry nomination stream set out in reg 5.19(4) of the Regulations, which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: reg 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 Act. The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
On the basis of the information in the Department’s eFile, the Tribunal is satisfied that the nomination application was made using the relevant online form. Consistent with reg 5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The administrative processes of completing, in the online form itself, the required certification in relation to s 245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the Trustee’s control were provided in the application form.
Accordingly, the requirements in reg 5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Based on the information provided including a copy of the signed Trust Deed dated 8 October 2015, current ASIC and ABN searches, the Trustee’s Financial Reports for years ended 30 June 2020 to 30 June 2022, BAS for the period 1 July 2020 to 31 December 2022 as well as the Trustee’s Tax Returns downloaded from the ATO’s website for years ended 30 June 2018 to 30 Jun 2022, the signed letter from the Trustee’s CPA Ms Joanna Zeng of Brightwing Accountants dated 7 November 2022 summarising the Trustee’s financial performance since 1 July 2018 as well as the Restaurant Licence issued under the Liquor Licensing Act 1997 (South Australia), the Tribunal is satisfied that the Trustee is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirements in reg 5.19(4)(b) are met.
Position is not labour-hire: reg 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.
The Tribunal has considered information in relation to the Trustee’s business, its financial records as well as oral evidence given at the hearing. The Trustee is not in the business of hiring labour to other businesses. In addition, the Tribunal has considered the terms of the updated signed Employment Agreement dated 5 March 2023 (the Employment Agreement). The Employment Agreement provides for Mr Tang’s direct employment as a full-time Cook.
Accordingly, the requirement in reg 5.19(4)(c) does not apply in the circumstances of this case.
Term of employment of the visa holder: reg 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.
As noted above, the delegate refused the Trustee’s nomination application on the basis reg 5.19(4)(d) was not satisfied because there was insufficient information to demonstrate that the Trustee had the financial capacity to employ Mr Tang for at least 2 years. The Tribunal has the benefit of significantly more documentation than that which was available to the delegate and, having regard to documentation referred to above in para [16], it is satisfied that the Trustee has the capacity to employ Mr Tang for at least 2 years. Turnover for the year ended 30 June 2022 was in excess of $3.5 million with profit after expenses and before distribution of $730,475.
Further, the Tribunal has reviewed the Employment Agreement. Clause 1.2 of the Employment Agreement states that the nominee’s employment will be full-time and for a minimum of 2 years.
Accordingly, the requirements in reg 5.19(4)(d) are met.
No less favourable terms and conditions of employment: reg 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.
The Employment Agreement provides the nominee will be paid a salary of $60,268 per annum plus superannuation. Based on the Organisation Chart provided, in addition to the nominee Mr Tang, there are 3 full-time Cooks, one of whom is an Australian citizen and the other is a permanent resident. The Tribunal has considered the Payroll Employee Summary provided. In addition, it has considered the Restaurant Industry Award 2020 (the Award) which provides for a range of salaries for a Cook depending on the grade with $51,040 per annum for a Grade 5 being the maximum.
Furthermore, and as set out in Mr Wong’s signed Statement provided after the hearing, Mr Tang is classified as a Grade 5 employee having regard to his trade qualifications and position description. To ensure compliance with the Award, the Trustee sought legal advice from John Love, an employment lawyer with Mellor Olsson Lawyers. Based on review of the Employment Contract and Mr Tang’s payslips, Mr Love has confirmed that the Trustee has complied with the Award. Mr Wong also notes that Mr Tang is the only employee classified as a Grade 5 Cook. The other Cooks are classified as Grade 2 under the Award. This is also confirmed by the Accountant Ms Joanna Zeng in her letter dated 24 March 2023 lodged with the Tribunal after the hearing.
The representative has provided evidence from a range of websites confirming the market salary for a Cook in Adelaide as at March 2023. This information has been summarised by Mr Wong in his Statement provided after the hearing:
Website Salary range PayScale $45,000 - $61,000 Seek $60,000 - $65,000 Jora $60,000 - $70,000
In addition, Mr Wong notes the Indeed website indicates that the average salary for (the higher level position of) a Chef in South Australia is $59,006 per annum. He also provided the Tribunal with an advertisement from Indeed for the equivalent position of a Cook at Charminar Klemzig offering a salary range of $55,000 – $60,000 per annum and another advertisement for an equivalent position of Cook published by Thai Days on seek.com providing a salary range of $58,000 – $60,000 per annum.
On the basis of available information, the Tribunal is satisfied that the salary offered to Mr Tang of $60,268 per annum is within the appropriate range of that normally paid to a Cook in Adelaide. Having reviewed the Employment Agreement, the Tribunal is also satisfied that the terms and conditions of Mr Tang’s employment will 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 reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that 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. For these purposes, the terms ‘adverse information’ and ‘associated with’ have the meaning respectively given in regs 1.13A and 1.13B of the Regulations.
The Tribunal put to Mr Wong during the course of the hearing the delegate’s comment that the Organisation Chart lodged with the Department indicates that Mr Tang was employed as a Cook at the time of lodgement of the Trustee’s nomination on 21 February 2018. Relevantly, the Tribunal noted that it appeared Mr Tang’s name was in red print whilst all other names were identified in black print. It also noted that, as confirmed in his signed Statement lodged with the Tribunal prior to the hearing, the Trustee was aware that Mr Tang’s Student visa had been cancelled and, as such, the Trustee did not employ him again until he had regained work rights in December 2019. In his Statement, Mr Wong observes that the Trustee was lucky to be able to secure employment from a former employee who came out of semi-retirement to help fill Mr Tang’s position pending his return. During the hearing, Mr Wong acknowledged the Tribunal’s comment regarding the delegate’s observation. He apologised for not clarifying this at the time of lodgement of the nomination.
Mr Tang gave independent oral evidence at the hearing that he was unemployed from March 2017 until December 2019 during which time he held a Subclass 600 Visitor visa with condition 8101 (No work). He explained to the Tribunal that he needed to do this because he had not finished the courses that he wanted to complete in Australia. As a consequence, he said he had to cease working at the Empress Restaurant on 15 March 2017 because he was aware that he didn’t have work rights. During the 2 years and 8 months from March 2017 until December 2019 (when he again had work rights), he lived at different places including with his girlfriend or with one of mother’s friends and he would also go over to his aunt’s place in Adelaide for meals.
After the hearing, Mr Tang provided a detailed Statutory Declaration setting out details of his immigration history in Australia and associated work rights. He also provided details of where he lived during the period when he did not have work rights and how he managed to survive on savings as well as support from his then girlfriend, his family including his cousins and his aunt as well as friends and then his current girlfriend. The Tribunal accepts the details set out in Mr Tang’s Statutory Declaration.
Mr Tang also explains in his Statutory Declaration that he was willing to remain in Australia without work rights for such a long period for 2 reasons: first, he needed to finish his studies having spent so much money, time and effort to get that far; and second, he had already started working as a Kitchenhand with Empress Restaurant in September 2016 consistent with the conditions of his then Student visa and had developed a really good relationship with Mr Wong who had indicated the business would be willing to sponsor him. Mr Tang observes that the Empress Restaurant is highly regarded in Adelaide and he saw this as a good opportunity for his future career. Therefore, with the help of family who supported him throughout, he was prepared to await the outcome. The Tribunal accepts Mr Tang’s comments.
Information provided by Mr Wong and Mr Tang has been confirmed by the Accountant Ms Joanna Zeng in her letter dated 24 March 2023 lodged with the Tribunal after the hearing. Ms Tang comments on payroll summaries prepared during the relevant period.
In regard to evidence provided, the Tribunal is satisfied that there is no adverse information in relation to the Trustee’s employment of Mr Tang during the period when he did not have work rights in Australia.
The Tribunal has also reviewed the Department’s Register of Sanctioned Sponsors. Relevantly, there is no information before the Tribunal to indicate that there is any adverse information known to the Department about the Trustee or a person associated with the Trustee.
Accordingly, the requirement in reg 5.19(4)(f) is met.
Satisfactory compliance with workplace relations laws: reg 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.
Having reviewed the website of the Fair Work Ombudsman and the terms of the Employment Agreement, there is no information before the Tribunal to suggest the Trustee does not have a satisfactory record of compliance with workplace relations laws. On the contrary, the Tribunal acknowledges Mr Wong’s engagement with lawyers specialising in employment law to confirm that the Trustee complies with the relevant South Australian and Commonwealth workplace relations laws.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)
Regulation 5.19(4)(h) contains 2 alternative requirements. Relevantly, the requirements of reg 5.19(4)(h)(ii) relate to a nomination application made under the Regional Sponsored Migration Scheme (RSMS) for positions in regional Australia. The Trustee’s nomination is an RSMS application. As such, reg 5.19(4)(h)(i) of the Regulations does not apply in this case.
Regulation 5.19(4)(h)(ii) requires that; the position and nominator’s business is located in regional Australia; there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control; the position cannot be filled by a locally resident Australian citizen or permanent resident; the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument; and, a Regional Certifying Body (RCB) has advised the Minister about certain matters relating to the position.
The Tribunal has considered each of these criteria below.
The position and nominator’s business are located in regional Australia: reg 5.19(4)(h)(ii)(A) and reg 5.19(4)(h)(ii)(E)
The Tribunal is satisfied that the Trustee’s Empress Restaurant business is conducted at 351 Greenhill Road, Toorak Gardens, South Australia 5065.
The definition of ‘regional Australia’ is found in IMMI 17/059. The postcode of Toorak Gardens is 5065. This postcode is included in the list of postcodes for designated regional areas in IMMI 17/059 and, as such, the Tribunal is satisfied that the position and the nominated business are located in regional Australia.
Accordingly, reg 5.19(4)(h)(ii)(A) and reg 5.19(4)(h)(ii)(E) of the Regulations are met.
Genuine need to employ the nominee as a paid employee in the position under the nominator’s direct control: reg 5.19(4)(h)(ii)(B)
On 8 November 2022, Mr Wong provided a Statement to the Tribunal of the hardship in finding suitably experienced staff since the creation of the business as well as the further struggles during the COVID-19 pandemic.
Mr Wong, on behalf of the Trustee, states that during pre-Covid times, the business would receive hundreds of applications for the roles, however most of the applicants did not have the required skill set. Additionally, he states that since the Federal Government re-opened international borders there has been intense competition across the hospitality industry in Australia to find skilled labour but the level of migration since borders have reopened does not match this demand.
In his Statement lodged after the hearing, Mr Wong notes that his family have been in the hospitality industry for more than 40 years. His father operated a venue at the same location in Toorak Gardens from the 1980s. As a second-generation restauranteur, Mr Wong states that he genuinely appreciates the valuable contribution to the business provided by Mr Tang and the family is expecting him to succeed Mr Wong’s role in the business in due course given he is getting older and finding it more difficult to put in the working hours it takes to continue to make the business a success.
Having regard to the evidence provided, the Tribunal is satisfied the nomination identifies a need for the Trustee to employ a paid employee to work full-time in the position of Cook under the nominator’s direct control.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) of the Regulations are met.
The position cannot be filled locally: reg 5.19(4)(h)(ii)(C)
Accompanying the nomination application lodged with the Department was evidence of attempts by the Trustee to fill the position of Cook through advertisements on the Seek job search page. Further, in his Statement dated 8 November 2022 lodged with the Tribunal in response to its s 359(2) invitation, Mr Wong explained that it had received multiple responses to the job advertisements: however, none of the applicants were suitably qualified. He notes the Trustee has also resorted to personal referrals and juniors which meant that the people that were eventually hired were inexperienced, and many key roles could not be filled directly. It is said that the business would face significant hardship as they would not be able to replace Mr Tang.
Having regard to the evidence provided, the Tribunal is satisfied the position of Cook at the business’ premises in Toorak Gardens cannot be filled by a local resident who is an Australian citizen or permanent resident.
Accordingly, the requirements in reg 5.19(4)(h)(ii)(C) of the Regulations are met.
The tasks of the position correspond to those in ANZSCO: reg 5.19(4)(h)(ii)(D)
The tasks of the nominated position of Cook must correspond to those of an occupation specified in the relevant legislative instrument. Since the Trustee’s nomination was lodged on 21 February 2018, the applicable instrument in this case is IMMI 17/058.
The position description attached to the Employment Agreement provided to the Tribunal states that Mr Tang is required to undertake the following duties:
·cook to order lunches and dinners at Empress, ensure that all dishes are prepared consistently & according to the standard recipe
·producing and maintaining high standards of food preparation and presentation
·looking after the stock of the kitchen and informing it to the head chef as the stocks run out
·cleaning all the kitchen equipment before and after use, ensuing food standards, procedures and processes are followed, ensuring food quality and safety
·developing collaborative relationships with the manager, the head cook and other staff to provide quality food and prompt service to our customers
·assisting plan Empress menus
·maintain good communication between all areas of the restaurant
·filing in for absent head cook
·assisting in the designing in the interiors of the restaurant
·assisting in training new kitchen staff
·organising setting up the kitchen as effectively as possible to increase speed and maximise productivity
·update the accounts of the restaurant for the head cook
·apply safety standards and keep a check of the safety equipment.
ANZSCO states that Cooks ‘prepare, season and cook food in dining and catering establishments.’ In Australia, it requires an AQF Certificate III including at least 2 years of on-the-job training or an AQF Certificate IV. ANZSCO states that at least 3 years of relevant experience may substitute for the formal qualifications. The tasks of a Cook ANZSCO 351411 include:
·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.
Based on the evidence provided and having regard to the tasks of a Cook as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position with the Trustee correspond to the specified occupation of Cook ANZSCO 351411.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) of the Regulations are met.
Is the occupation applicable to the nominee in accordance with the specification of the occupation?: reg 5.19(4)(h)(ii)(DA)
ANZSCO states that occupations in Unit Group 3514 Cooks which includes the nominated occupation of Cook ANZSCO 351411 have a skill level commensurate with an AQF Certificate III including 2 years of on-the-job training or an AQF Certificate IV (ANZSCO Skill Level 3) but that at least 3 years of relevant experience may substitute for any of these listed formal qualifications.
The Tribunal is satisfied that the nominee Mr Tang has a Certificate III in Commercial Cookery. In addition, he worked with the business for 6 months from September 2016 until March 2017 on terms consistent with his Student visa, that is, 40 hours per fortnight in his course was in session. Mr Tang recommenced working with the Trustee on 6 December 2019 when his then Bridging E visa permitted him to work. He has been working with the business continuously since that time, that is, 3½ years as at the date of this decision.
Having regard to Mr Tang’s qualifications and experience, the Tribunal finds that the occupation of Cook ANZSCO 351411 is applicable to the nominee in accordance with the specification of that occupation in ANZSCO.
Accordingly, the requirement in reg 5.19(4)(h)(ii)(DA) of the Regulations is met.
Has the RCB provided the required certification about matters specified in reg 5.19(4)(e), reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C)?: reg 5.19(4)(h)(ii)(F)
On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 22 January 2018 lodged with the Department, the Tribunal is satisfied that an RCB located in South Australia and specified in the relevant legislative instrument IMMI 17/059 has advised the Minister about the matters set out in in reg 5.19(4)(e), reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C) of the Regulations.
In this case, the RCB’s Form 1404 has been issued by the South Australian Department of State Development. It states that:
·there is a need for a paid employee in the nominated position within the business activities of the nominator;
·the nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as the nominated position; and,
·the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are, or would be, provided to an Australian citizen or permanent resident for performing equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31, certification by an RCB is not sufficient or determinative in relation to whether the nominator meets reg 5.19(4)(e), reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice for the reasons set out above.
However, having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of reg 5.19(4)(h)(ii)(F) of the Regulations are met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
Conclusion
Based on the cumulative findings above, the Tribunal is satisfied that the Trustee meets all the requirements of reg 5.19(4)(h) for approval of its nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Katie Malyon
MemberATTACHMENT - 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 an identified person, as 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) all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).
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