THE TRUSTEE FOR NEUMANN FAMILY TRUST (Migration)
[2024] AATA 194
•28 January 2024
THE TRUSTEE FOR NEUMANN FAMILY TRUST (Migration) [2024] AATA 194 (28 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: THE TRUSTEE FOR NEUMANN FAMILY TRUST
REPRESENTATIVE: Mr Mohammad Ahasan Ali (MARN: 0851085)
CASE NUMBER: 1919612
HOME AFFAIRS REFERENCE(S): BCC2018/4756864
MEMBER:Susan Reece Jones
DATE:28 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 28 January 2024 at 4:55pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Cook – annual market salary rate – updated financial information – adverse information – actively and lawfully operating a business in Australia – business contribution to the regional community – genuine need for the employment – tasks of the position correspond to nominated occupation – financial capacity to employ the nominee for at least two years – terms and conditions of employment no less favourable – relevant qualifications – decision under review set aside
LEGISLATION
Corporations Act 2001, s 95A
Fair Work Act 2009
Income Tax Assessment Act 1997
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, rr 1.03, 1.13, 2.72, 5.19, 5.37CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
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 29 June 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 29 October 2018. The requirements for the approval of the nomination of a position of Cook (ANZSCO 351411) 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)(h) of the Regulations because the delegate was not satisfied that the applicant had determined the AMSR for the nominated occupation in accordance with method specified in IMMI 18/033 and therefore paragraph 2.72(15)(c) was not met.
On 9 August 2022, the Tribunal was advised that the applicant’s registered migration agent, Ms Shalini Vellapandian of Focus Migration was no longer acting on behalf of the applicant and the applicant had appointed a new migration agent.
6. On Tuesday, 9 August 2022, the Tribunal was advised Mr Mohammad Ahasan Ali of ImmiVisa was appointed as representative for the applicant. In addition, the representative advised that the following information was enclosed:
· ASIC Name Extract and Trust Deed
· Financial Statements and Trust Tax Returns 2020 and 2021
· Organisational Chart
· Lease Agreement and Liquor Licence
· Local Newspaper and Seek Job Advertisements; RCB Approval
On 26 July 2022, the Tribunal wrote to the applicant’s representative pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the applicant to provide the Tribunal with further information in support of this application by 9 August 2022.
On 9 August 2022 the representative submitted the following:
·ASIC Name Extract and Trust Deed
·Financial Statements and Trust Tax Returns 2020 and 2021
·Trust Deed dated 7 April 2011
·Organisational Chart
·Lease Agreement and Liquor Licence
·Local Newspaper and Seek Job Advertisements
·Form 1404 RCB Approval, RDA Southern Inland, Goulburn, dated 28 November 2018
9. On 8 September 2022 the representative provided additional documents, namely:
- ASIC Historical Extract dated 15 August 2022
- BAS Statements from January 2020 to March 2022
- Letter of Assurance from applicant re nominee application
- Employment Reference Letter
10. On 24 November 2022, the Tribunal wrote to the applicant to request further information that the applicant may wish to provide in support of this application.
11. On 8 December 2022 the representative submitted the following:
- Applicants’ Tax Rate Audit report
- Advertisements Local newspapers/Seek
- ASIC Current & Historical Company Extract dated 15 August 2022
- Business Activity Statement (BAS) July 2019 to March 2022
- Nominees’ Qualifications
- Employment Contract 2018
- Employment reference Letter November 2022
- Financial Statements 2020 & 2021
- Nominees’ letter of assurance from applicant
- Applicant submission re nominee and role
- Nominee’s CBA Bank Statements
- Nominee’s Notice of Assessments for 2018 to 2022
- Organisation Chart
- Nominees’ PAYG for 2017 to 2022
- Form 1404
- Nominees’ Resume
- Nominee’s Superannuation Statements
- Trust Tax Returns 2020 & 2021
12. On 26 October 2023 and 2 November 2023, the representative submitted the following documents to the Tribunal:
· BAS 2023
· Letter of reference from applicant re nominee application dated 11 October 2023
· Financial Statements 2022 (including ATO Trust return)
· Letter from Accountant: Nexus Accountants & Business Advisors: 24 October 2023
· Organisation Chart
· Draft Financial Statement 2023
· Nominee resume
· VETASSESS (dated 3 August 2023)
13. On 3 November 2023, the Tribunal wrote to the applicant pursuant to s359A of the Act to inform the applicant about a certificate issued pursuant to s.375A of the Migration Act 1958 (the Act), which is on the Department’s file. The Tribunal advised the applicant about potentially adverse information on the Department’s file, namely that there is an allegation which was received by the Department through an online submission, that the nominee has paid the applicant in order for the nominee to obtain the visa and remain in Australia. The applicant was advised that the allegations include that the applicant has provided the nominee with payslips and paid wages to the nominee’s bank account and have later received payments in cash for those wages. The applicant was invited to comment on or respond to that information by 17 November 2023.
14. The applicant was further advised that a delegate of the Minister has determined that s.375A applies to the designated information and that full disclosure would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. Additionally, the applicant was advised that the effect of the certificate is that the Tribunal must do all things necessary to ensure that the documents or information that are subject to the certificate are not disclosed to any person other than the Tribunal member to whom the case is constituted. The relevance of this information might cause the Tribunal to find that there is adverse information pursuant to r 5.19(4)(b) and that there is no genuine need for the position and for the nominee to be employed by the applicant pursuant to r5.19(9)(d).
15. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the applicant or a person associated with the applicant (for example, the nominee), or it is reasonable to disregard any such information. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law.
16. The applicant was advised that this information it was accepted, may indicate that the applicant has contravened s 245AR of the Act which prohibits asking for or receiving a benefit for a sponsorship related event. The consequences of the Tribunal relying on this information is that the Tribunal may find that there is adverse information known to Immigration about the applicant and therefore the applicant would be unable to meet reg 5.19(4)(b), and/or that there is no genuine need for the position such that the applicant would not meet reg 5.19(9)(d).
17. On 21 November 2023, the representative additional documents to the Tribunal in support of the application, including:
·Company Bank Statements (St George Bank)
·Employee Payroll Summary
·Employee Superannuation Payments
·PAYG lodgement to ATO
·Labour Market Testing
·Organisational Chart
In the letter to the Tribunal of 21 November 2023, the representative also advised the Tribunal that the applicant’s director, Mr. Kurt Neumann was preparing all the documents to response on the adverse information detailed in the Tribunal’s letter of 3 November 2023. The representative requested an extension of time (EOT) for an additional 15 days in which to respond to the Tribunal.
On 12 December 2023, the Tribunal responded to the applicant’s request for an EOT. In that letter, the Tribunal referred to the Tribunal’s letter sent pursuant to s.359A on 3 November 2023, a response to which was due on 17 November 2023. In the Tribunal’s letter dated it was stated that if the applicant did not provide a comment or response or seek an extension of time to respond by 17 November 2023, the applicant would lose its right under the Act to appear before the Tribunal to give evidence and present arguments. It was also stated that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information.
As the Tribunal did not receive a response or a request for an extension of time by the due date, the Tribunal confirmed to the applicant that it lost the right to appear before the Tribunal to give evidence and present arguments. However, the Tribunal agreed to defer making a decision in this matter until 27 December 2023 to enable the applicant to provide any additional material it wished to provide in support of this case. The applicant was advised that this information should be provided by 27 December 2023.
21. On 19 December 2023, the representative submitted the following documents.
·Submission Letter
·Annual Market Rate Salary - Labour Market Insights
·Letter of Recommendation from Customers and Suppliers
·Recommendation Letters from employees
·Previous Approvals and Withdrawal Confirmations
·Labour Market Testing
·Tax Assessments, Income Statements and Bank Statements of nominee
·Company Bank Statements
·Employee Payroll Summary
·Employee Superannuation Payments
·PAYG lodgement to ATO
·Recent Labour Market Testing
·Organisational Chart
22. 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
23. 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 DE reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
24. 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).
25. 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.
26. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.
27. The applicant operates the Royal Hotel in Gundaroo, regional NSW and trades under the business name “Grazing Restaurant”. The applicant was founded by director Mr Kurt Neumann who is actively involved in the business as the restaurant’s leading Chef.
28. The nominee in this case commenced employment with the applicant on 5 April 2018 on a part-time basis in the nominated role as Cook, and currently works for the applicant on a full-time basis.
29. Based on the relevant evidence provided upon review and the requirements in reg 5.19(2), the Tribunal finds that that the application:
· was made in accordance with approved form 1395 (Internet)
· the nomination was made after 12 August 2018 (on 29 October 2018) in favour of the nominee (Mr Shafiq Ahmed) for the position of Cook under the Regional Sponsored Migration Scheme (nomination type is ‘Direct Entry’);
· the applicant’s business was established 7 April 2011 and both the head office and the nominated position are located in Gundaroo 2620 NSW;
· the base salary for the nominee was noted as being $55,000 per annum;
· identifies an occupation in relation to the position (Cook ANZSCO 351411)
· identifies the subclass (187 visa) and stream to which the nomination relates
· is accompanied by the fee
· is accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination;
· identifies the ‘annual turnover’ for the nomination; and
· includes a written certification in relation to s 245AR(1)
30. 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)
31. 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.
32. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
· has contravened a law of the Commonwealth, a State or a Territory, or
· is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
· has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
· has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
· has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
33. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
· they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
· one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
· a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
· they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
· one is or was able to exercise influence or control over the other, or
· a third person is or was able to exercise influence or control over the both of them.
34. Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
Non-disclosure certificates
35. On 3 November 2023, the Tribunal wrote to the applicant to inform the applicant about a certificate (a copy of which was provided to the applicant) issued pursuant to s.375A of the Migration Act 1958 (the Act), which is on the Department’s file about potentially adverse information.
36. The Tribunal advised the applicant that the certificate was signed and dated, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. Having reviewed the certificate and the material sought to be protected from disclosure, the Tribunal finds that the certificate was validly made in relation to the relevant information.
37. The Tribunal invited the applicant to comment on or respond to information set out below that the Tribunal would consider, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review.
38. The information covered by the 375A certificate states that:
i.The applicant’s representative at the time of application, has been investigated for providing false and forged documents in regard to the sponsorship of the applicant.
ii.There is an allegation which was received by the Department through an online submission, that the nominee has paid the applicant in order for the nominee to obtain the visa and remain in Australia.
iii.This information indicates that the applicant may be paid by the nominee (and possibly other Temporary Visa Holders) in exchange for sponsoring the nominee’s visa.
iv.The allegations include that the applicant has provided the nominee with payslips and paid wages to the nominee’s bank account and has later received payments in cash for those wages.
39. The applicant was advised that the relevance of this information might cause the Tribunal to find that there is adverse information pursuant to r 5.19(4)(b) and that there is no genuine need for the position and for the nominee to be employed by the applicant pursuant to r5.19(9)(d).
40. Having regard to the submitted evidence upon review, the Tribunal notes as follows:
· the applicant has successfully nominated and sponsored other nominees. There were no certificates or claims or issues raised by the Department in regard to those prior applications and the matters specified in the certificates;
· the applicant submitted to the Tribunal, its employee payroll summary report to demonstrate compliance with salary payment legislation to employees;
· the applicant’s business banking statements, and the (Suncorp) banking statements of the nominee, and the annual income statements of the nominee, indicate that the applicant is paying the nominee’s salary as contracted;
· the applicant’s audit statements and transaction history and tax rate audit reports do not indicate or identify any payment of the nature indicated in the certificate;
· the applicant’s representative at the time of application is no longer the representative for the applicant;
· there is no evidence that the Department has continued to investigate or find against the applicant’s former representative, or the applicant, or the nominee, in regard to the claim of providing payment for the visa in regard to the sponsorship by the applicant;
· in support of the applicant and its reputation, the representative provided numerous letters from the applicant’s employees, customers, members of the community and suppliers; and
· the applicant submitted that it is a successful, long established business employing many employees, that it has a hard-earned reputation to uphold and did not take money from the nominee for the sponsorship.
41. In summary, the Tribunal has no evidence to demonstrate or verify that the applicant has been paid by the nominee in the manner or as described in the certificate.
42. Having consideration to the information provided in support of this application upon review, the Tribunal has formed the view, there is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person.
43. 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)
44. 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.
45. 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 29 October 2018.
46. It is not a legislative requirement to hold a licence or registration to act in the role of Cook in Victoria. The applicant is also not required to ensure that its employees hold a license or registration.
47. 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)
48. 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.
49. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with employment laws of the Commonwealth and Victoria.
50. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
51. 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.
52. There is no information before the Tribunal to indicate that there is/was any debt payable by the applicant under s 140ZO of the Act.
53. 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)
54. Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
55. The applicant submitted that it trades as ‘Grazing Restaurant’ and….. ‘is one of the finest’ restaurants in regional New South Wales. The applicant’s business is located in the historic rural village of Gundaroo and is award- winning. It is located within the original, National Trust registered ‘Royal Hotel’ which was built in 1865. The applicant advised that it provides ‘….contemporary, seasonal food matched with wines from the local region….’. The applicant also submitted that it provides its patrons with an extensive list of the regional wines. The applicant trades for both lunch and dinner. Grazing is described in submission as ‘….. one of the best restaurants in the Canberra region, and in NSW…..’
56. The applicant’s recent BAS indicates that the applicant operates a substantial business:
Sales income $ Salaries $ Jul – Sept 2022 488,295 71,964 Oct – Dec 2022 571,922 48,633 Jan – Mar 2023 403,464 71,724 Apr - Jun 2023 540,698 45,419 TOTAL 2,004, 379 237,740
57. The applicant provided the Tribunal with a submission from Mr Tom Rowe, Manager of Nexus Accountants and Business Advisors, dated 24 October 2023. In the submission, Mr Rowe stated that in his professional opinion based on the applicant’s Financial Statements and Tax Return, the applicant ‘…..accepts financial responsibility for obligations to the Commonwealth for sponsoring and nominating persons while in Australia………’ Mr Rowe confirmed in his submission that the applicant is actively and lawfully operating in Australia.
58. The applicant provided the Tribunal with an Organisation chart. The applicant’s director, Mr Kurt Neumann (who is also the applicant’s Head Chef) submitted to the Tribunal that the applicant employs approximately 20 employees.
59. The applicant’s Financial Statements as set out below, indicate that the applicant is a large business (particularly given its remote, rural location), with a positive net asset position, and has han annual turnover in excess of $1.5 million per annum for the past three years.
2019 2020 2021 2022 2023* Total income
949,153 1, 222, 112
2,105,290
1,581,893 1,793,106 Wages 511,849 488,986 601,141 513,077 599,997 Superannuation 80,940 76,085 85,740 81,566 92,527 Total assets
176,998 148,543 248,148 263,194 313,122 Total liabilities
176,988 148,533 248,138 263,194 48,015 *Draft Financial Statements
60. The applicant’s submitted its Liquor Licence record which notes that the licence granted to the applicant’s business (‘Grazing’) in the Yass Valley region for an on-premises liquor licence. The applicant also provided a copy of its Lease Agreement for the “Gundaroo Pub”.
61. The Tribunal’s analysis of the Financial Statements and recent BAS above indicates that the applicant’s income grew substantially in 2021 (assisted also by COVID-19 pandemic financial contributions). In addition, the Tribunal notes that the applicant’s sales continue to be robust with sales averaging $150,000 per month.
62. Based on the material provided to the Tribunal on review, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia and meets the requirements of reg 5.19(9)(a).
Labour hire businesses – reg 5.19(9)(b)
63. 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.
64. There is no evidence before the Tribunal that the applicant participates in labour hire activities.
65. 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)
66. 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.
67. The applicant’s Organisation chart shows that it employs 20 employees. 5 employees are full time, 15 are engaged in a part time basis. All employees are Australian residents or Permanent Residents with the exception of 2, one of whom includes the nominee. The applicant’s kitchen operation is staffed by 4 full-time employees:
· Head Chef: the applicant director
· Senior Chef / Cook / second in charge to the Head Chef (the nominee): non-resident
· Junior Cook: non-resident
· 2nd year apprentice Chef who is an Australian resident
The applicant also employs a Retail Manager on a full-time basis and multiple causal employees as wait staff.
68. The applicant submitted that the nominated position is integral to the applicant’s growth. Given the nature of the applicant’s business, the role of the nominee is submitted as being key to the continued business success and growth (despite COVID-19) of the applicant.
69. The applicant operates a regionally renown restaurant located in Gundaroo. Director and Head Chef Mr Neumann submitted that the aim of the restaurant is to ‘……serve great tasting meals made with the freshest and best produce the region has to offer…..’. The restaurant is open for lunch and dinner, five days a week.
According to the applicant’s Organisation Chart, the nominee is the second in charge to Mr Neumann as Head Chef. Mr Neumann submitted that the nominee works well within the applicant’s team and has made significant contributions to the applicant’s business since 2018. Mr Neumann submitted that the role of the nominee as Sous Chef is a demanding one ‘……and integral to the ongoing success and overall operations of Grazing Restaurant….’.
The applicant also submitted numerous letters in support of the nominee’s application which noted, inter alia ‘……the importance of this restaurant to the local community cannot be understated. For a township of c 500 people to have one of the regions most acclaimed and award-winning dining businesses is unique. …..[the applicant director] is very highly regarded …… and has a generous reputation for donating dining experiences to support the local school, community groups and other charities…..The applicant Mr Neumann and his team at Grazing also attract a large number of visitors to the region that in turn support other local businesses such as wineries, cafes, galleries and smaller shops. The small but growing tourism industry in the surrounding Yass Valley relies on restaurants such as Grazing to support a wide range of industries and jobs…….understand that leading dining operators such as Grazing, which commit to a high level of attention to detail and customer experience rely on being able to identify and train suitable staff. Shafiq (the nominee) has been a key part of the team at Grazing for 5 years and I have seen first-hand how critical he is as Sous Chef. The small kitchen team rely heavily upon him to deliver at a high standard often under time pressure…….
Submissions to the Tribunal also describe the nominee as being respected, held in high regard as a Chef and colleague, having a strong work ethic, dependable, honest and courteous. The various external submissions provided to the Tribunal also describe the applicant director Mr Neuman and his wife as ‘…..creative collaborators and, importantly, generous, loyal and reputable members of the community… remaining true to their values and principles, including ongoing support for their staff. They have a robust business, built on quality and customer experience…..’The Tribunal acknowledges that the applicant has successfully operated its restaurant since 2011, and its financial performance indicates that it is a significant business, practically noting that it is in a remote, regional location.
The Tribunal review of the nominee’s Employee Agreement shows that the terms and conditions of employment are in accordance with the provisions of the Fair Work Act.
The applicant advised that the position was advertised locally and online before the submission and the position was offered at the restaurant under the direct control of the employer. The applicant submitted evidence of its Local Market Testing (LMT) recruiting activities in the Canberra Times and online via Seek.
The Tribunal has had regard to the National Skills Commission’s Skills Priority List (SPL), which is produced annually to review the national skills needs of Australia (most recent edition October 2022). The SPL provides a current labour market rating and a future demand rating for occupations nationally. Current labour market ratings are also stated for occupations at a State level. Each occupation assessed is categorised into one of six categories with a “Future Demand Indicator”. The SPL states that the position of Cook is classified as having a shortage of employees nationally and therefor a strong future demand nationally in all States and Territories.
The Tribunal is satisfied based on the material before it, that the applicant has identified a need for the identified person to be employed in the position, under the direct control of the nominator, and in accordance with reg 5.19(9)(d), the need is genuine.
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.
82. The Employee Agreement (dated 21 November 2018) states that the term of engagement will be for at least 3 years, with a minimum salary of $55,000. The terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment.
The nominee’s PAYG and Notice of Assessment since engagement on a part time basis in 2018 – 2019, and since then on a full-time basis shows the nominee has been paid by the applicant as contracted:
$ 2018 2019 2020 2021 2022 2023 PAYG 47, 511 38, 329 45, 618 55, 720 53, 945 Notice of Assessment 47, 089 40, 614 45, 168 57, 960 53, 135 70,577
84. The applicant provided proof of superannuation payments to all employees, including to the nominee’s super fund HostPlus.
85. The applicant’s business according to paragraphs 55 and 58 above, has an income in excess of $1.5million per annum and in the Tribunal’s assessment, has the capacity to pay the nominee the nominated salary on an ongoing basis.
86. The Tribunal notes that the contracted salary payment for the nominee is in excess of the ‘annual market salary rate’ (AMSR) each year.
87. On review, the Tribunal has been provided with additional material in relation to the applicant’s business and salary payments made to the nominee over the past 4 years as a full-time employee. The Tribunal is satisfied that the applicant (which continues to have a substantial business), has the capacity to employ the nominee for at least 2 years at the contracted (or more) salary in accordance with reg 5.19(9)(g).
88. 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)
89. 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 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
· the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument 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 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).
IMMI 18/033, Part 2—Income Threshold and Annual Earnings, section 6 Income Threshold, states that for the purposes of paragraph 2.72(15)(d) of the Regulations, the temporary skilled migration income threshold (TSMIT) is $53,900.
The AMSR means the earnings of 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 applicant indicated in its application that it does not have an Australian worker in the applicant’s workplace performing work equivalent to that of the nominated position.
The applicant indicated that an equivalent Australian worker would not be paid in accordance with a Fair Work instrument, State Industrial instrument or Transitional instrument. Therefore, the AMSR must be determined by reference to relevant information.
The Department determined that the applicant did not provide any information demonstrating how it determined the AMSR specified in its application form. Hence, the Department determined that the applicant did not meet r5.19(9)(h).
Where there is not an Australian worker performing equivalent work in the same workplace and location, the method for determining the AMSR is:
●If there is a Fair Work instrument, State Industrial instrument or Transitional instrument applicable to a nominated occupation, then the AMSR for the nominated occupation is the annual earnings of an equivalent Australian worker contained in those instruments.
●If there is no such instrument, then the AMSR is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.
IMMI 18/033 includes the following definitions:
Relevant employment documents may include, but is not limited to:
a)pay slips;
b)contract of employment.
Relevant information may include, but is not limited to:
a)information published on the Australian Government’s Job Outlook website;
b)job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
c)written advice from registered employer associations and/or unions;
d)remuneration surveys generated across the relevant industry by a reputable organisation or body.
Regulation 2.72(15) does not apply if the annual earnings will be at least the amount specified by legislative instrument for reg 2.72(15)(b). The amount specified for reg 2.72(15) by s5 of IMMI 18/033 is $250,000. The Tribunal notes that the nominee’s annual earnings will not be the amount specified in the relevant instrument for reg 2.72(15)(b) ($250,000). As the proposed annual earnings of the identified person are less than AUD 250,000 in accordance with paragraph 2.72(15)(b), the Minister or delegate must be satisfied of the other criteria in paragraphs 2.72(15)(c) to (g).
The Tribunal is also in receipt of the various job advertisements for the nominated role (on Seek and in the Canberra Times newspaper).
The Tribunal has also had regard to salary surveys and other salary data, including:
- PayScale (accessed 18 January 2024), the average annual salary for a Cook (ANZSCO 351411) in a restaurant Australia is between $49,000 and $59,000. The nominee’s salary is stated in his Employee Agreement as being $55,000 per annum:
·According to Seek (accessed 18 January 2024), the average salary of a Cook in Australia is between $60,000 and $75,000. Refer:
The nominee’s Employment Agreement specifies that the nominee’s salary is covered by a Fair Work Act. There is no Award applicable in this case to compare the nominated most recent proposed salary of $55,000, however the Tribunal is of the view that it is within an acceptable market range, and importantly, exceeds the threshold of $53,900 as prescribed in s6 of IMMI 18/033.
The Tribunal notes that ranges of roles and salaries offered under the job description of “Cook” is wide and that the job title varies extensively pending the type of establishment being run. In this case, the applicant operates a high-end, locally renown restaurant.
On review, the applicant has provided the Tribunal with relevant employment documents including the nominee’s payslips and Employee Agreement dated November 2018 (salary of $55,000, plus superannuation). As noted at paragraph 82 above, the nominee earned in excess of $70,000 in FY2023.
The Tribunal’s review concludes that the nominee is being a competitive market salary in compliance with reg 5.19(9)(h) and that the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument 18/033: reg 2.72(15)(c). It also appears to the Tribunal based on the submitted material on review, that the applicant has determined that the AMSR for the occupation of Cook is $55,000 based on the annual earnings of an equivalent Australian worker specified in an equivalent business (in the local area). Having regard to IMMI 18/033, and in light of the evidence that there is no Australian worker performing equivalent work, this appears to be the appropriate methodology for determining the AMSR: see s8(b) of IMMI 18/033.
The AMSR provided for the nominated position, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation of Cook is not less than the temporary skilled migration income threshold specified in the instrument 18/033 (TSMIT) as noted above. The nominee’s annual earnings in relation to the position of Cook will therefore not be less than the rate for the occupation, and in fact have been higher as noted at paragraphs 82 and 101 above. The nominee’s annual earnings will also not be less than the TSMIT as stated above at paragraph 89.
The Tribunal is satisfied that there is no information known to Immigration that indicates the AMSR for the occupation is inconsistent with Australian labour market conditions relevant to the occupation.
The Tribunal also notes that nominee has been employed – and paid - by the applicant initially on a part-time basis since 2018, and then on a full-time basis since 2019.
For these reasons the requirements of reg 2.72(15)(c) 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 had regard to the nominee’s Employment Agreement which provides for a salary of $55,000.
The applicant’s submissions and Organisation chart confirm that there is no Australian performing equivalent work at the same location. Further, the Tribunal has no information to indicate that the nominee’s employment conditions, will be less favourable than those for the Australian equivalent.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
· the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
· the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
· the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
· a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
As the position and nominator’s business are located in regional Australia (Gundaroo, New South Wales), the applicant satisfies the requirements of reg 5.19(12)(a) and (b).
The applicant provided the Tribunal with (detailed) evidence of its activities in relation to the advertisements for the position and that the position could not be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned as required by reg 5.19(12)(c).
The Indicative Skill Level for occupations in the Australian and New Zealand Standard Classification of Occupations (ANZSCO unit group 351411 states that most occupations in this unit group have a level of skill commensurate with the qualifications and experience of:
• AQF Certificate III including at least two years of on-the-job training, or
• AQF Certificate IV (ANZSCO Skill Level 3)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.
The Tribunal notes that the applicant has a Certificate IV in Cookery and therefore complies with the Indicative Skill Level requirements set out in ANZSCO.
119. Tasks for this ANZSCO unit group 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
The Tribunal has reviewed the nominee’s Position Description upon review. The applicant also provided a submission the duties as required by the Head Chef and applicant director, Mr Neumann, namely:
·To ensure all food is prepared as per the standards of the establishment and as outlined by the Head Chef
·To ensure meals are produced on time with sufficient quantities available in line with demand by the clientele
·Maintain stock levels of all kitchen supplies
·To ensure the correct hygiene in produce storage as set out by management to minimize food loss and wastage
·Responsible for the ordering and stock control rotation
·Seasonal menu development changes a instructed by management
·Daily/ weekly specials
·Maintain food standard and meal presentation as instructed by the Head Chef
·To ensure the kitchen and kitchen areas are clean and exceed government health regulations
·Ensure kitchen equipment is clean and maintained in as manner that reflects the high standards of the establishment.
Noting that the applicant’s restaurant has some specific and special requirements, Mr Neumann advised that the nominee’s tasks for the position also include:
· Inspect food preparation and serving areas to ensure observance of safe, sanitary food- handling practices
· Turn or stir foods to ensure even cooking
· Season and cook food according to recipes or personal judgement and experience
· Observe and test foods to determine if they have been cooked sufficiently using methods sue as testing, smelling, or piercing them with utensils
· Weigh, measure, and mix ingredients according to recipes or personal judgement, using various kitchen utensils and equipment
· Portion, arrange, and garnish food, and serve food to waiters or patrons
· manage new contracts
· Regulate temperature of ovens, broilers, grills, and roasters
· Substitute for or assist other cooks during emergencies or rush periods
· Wash, peel, cut, and seed fruits and vegetables to prepare them for consumption
· Estimate expected food consumption; then requisition or. purchase supplies, or procure food from storage
· Carve and trim meats such as beef, veal, ham, port, and lamp for hot or cold service, or for Bake breads, rolls, cakes, and pastries
· Prepare relishes and hors d'oeuvres
As noted above, the applicant provided the Tribunal with evidence of the requirements of the position (including samples of the nominee’s work), which evidence the nominee’s daily tasks as being aligned in the Tribunal’s view, with the ANZSCO duties for this role. Having regard to the ANZSCO description, the position description and all documentary evidence provided, the Tribunal is satisfied that the tasks to be performed in the position of Cook ANZSCO 351411 correspond to the tasks of an occupation specified in a legislative instrument (as set out above), 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).
In terms of the legislative instrument applicable to this application, the Tribunal has had regard to IMMI 18/043 as this instrument applies in relation to an application for approval of a nomination made on or after 18 March 2018. Part 2—Specification of occupations for Subclass 187 visa, section 5 Specification of occupations for the Direct Entry stream states that for the purposes of subregulation 5.19(13) of the Regulations:
· an occupation mentioned in column 1 of an item of the Medium and Long-term Strategic Skills List or the Regional Occupation List is specified for the purposes of subregulation 5.19(12) of the Regulations; and
· the occupation applies to an identified person if the tasks of the occupation that are to be performed by the identified person correspond to the tasks set out in the ANZSCO code specified for the occupation in column 2 of the item.
· Section 7, Regional Occupation List specifies under Column 2, the position of Cook ANZSCO Code 351411.
As set out in above, the Tribunal has reviewed the tasks and position description of the nominee and also the supporting submissions of the applicant’s director Mr Neumann. The Tribunal has determined that they correspond with the ANZSCO requirements for the position of Cook ANZSCO Code 351411and are thus in compliance with the requirements set out in IMMI18/043.
Regulation 5.19(12) requires that:
·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 applicant provided a Regional Certifying (RCB), Form 1404 Approval, RDA Southern Inland, Goulburn, dated 28 November 2018.
The Tribunal was provided with the LMT for the applicant in regard to this nominated position. The Tribunal notes that the nominee has been employed by the applicant for 5 years to date and according to the applicant director Mr Neumann is a valuable and important employee. The Tribunal notes that the Form 1404 and the giving of an advice from a RCB is sufficient to satisfy reg 5.19(4)(h)(ii)(F).
In summary and as set out above, the Tribunal has had the benefit of additional information provided by the applicant at upon review. The Tribunal has in such circumstances, separately considered and is satisfied about each of those matters that the RCB advice deals with. Noting that the applicant is based in rural New South Wales in a very small country town, the Tribunal is satisfied that the applicant did try to recruit an Australian citizen or permanent resident who is living in, or would move to the local area, however, was unsuccessful. Hence, the applicant sought to pursue – and continues to do so some 5 years later - this application for nomination of the nominee in the nominated role.
The Tribunal notes that the nominee’s Employment Agreement provides for a salary of $55,000 and in the most recent financial year (2023), the nominee was paid in excess of $70,000. The applicant therefore meets the requirements of reg 5.19(12)(f).
Given the above findings, the Tribunal is satisfied that reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
Having reviewed all the submissions provided, both as part of the original application and to the Tribunal on review, and having regard to all of the above, the Tribunal is satisfied that the duties of the nominated position do correspond with those listed within the relevant instrument for the designated occupation, and that there is a genuine need for the paid position under the applicant’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident.
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.
Susan Reece Jones
MemberATTACHMENT – 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Jurisdiction
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Natural Justice
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