The Trustee for Pianta Unit Trust (Migration)

The Trustee for Pianta Unit Trust (Migration) [2022] AATA 3123 (23 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Pianta Unit Trust
REPRESENTATIVE:  Mrs Rachel Praxl (MARN: 0959855)
CASE NUMBER:  1916026
HOME AFFAIRS REFERENCE(S):          BCC2018/1153619
MEMBER:Peter Emmerton
DATE:23 August 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 August 2022 at 12:35pm
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Café or Restaurant Manager – application is compliant – genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position cannot be filled by an Australian citizen or permanent resident– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360
Migration Regulations 1994, rr 1.13, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 May 2019 to reject 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 applied for approval on 11 March 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: 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 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 applicant 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 applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) or reg 5.19(4)(h)(ii)(D) of the Regulations because they were not satisfied that the nominator had demonstrated a genuine need to employ a paid full-time employee to work in the position under the nominator’s direct control nor that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument.
The applicant was represented in relation to the review by its’ registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.
The nominating entity owns and runs a substantial restaurant / coffee roaster in Manjimup, Western Australia. Located approximately 300 kilometres from Perth. It operates an a la carte menu providing a range of meals and specialises in gourmet coffee products. The Co-Directors in addition own and run 3 other businesses.
The total number of staff employed in the business subject to this review is 16 full-time, part-time or casual employees including the visa applicant. In addition, 2 Managers from 2 of the other businesses report to the visa applicant’s role as well as 3 Supervisor level roles which include Marketing, Food orders and Production.
The visa applicant’s responsibilities, previous experience, qualifications, current years of management responsibilities and attributes, substantially align with the duties associated with a Café or Restaurant Manager (General), ANZSCO 141111, Skill level 2.
The visa applicant possesses a Diploma of Hospitality Management gained in Australia and substantial enterprise-based experience.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in Hospitality businesses with limited opportunities for advancement. This is exacerbated in regional areas or smaller States such as Western Australia. It is also aware of the increased difficulty in obtaining staff as a direct result of the inability to bring overseas workers into Australia and the dramatic reduction in permanent and temporary migration, which has resulted from the previous 2 years of Covid-19 related border closures. Current reports suggest that it will take a minimum of 2-3 years to remedy the national immigration deficit.
The Tribunal accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The most recent contract of employment dated 5 July 2022, stated the salary as $68,000 plus the Superannuation Guarantee which is currently 10.5%. The total current remuneration package is therefore currently $78,200.
The Tribunal perused popular employment web sites to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of locations and organisations currently under recruitment. Over 20,000 vacancies exist nationally and approximately 10% of those are in Western Australia. The Tribunal accepts the widely circulated reports that the demands upon retail / restaurant and dining outlets increased considerably during the current Covid-19 pandemic and has remained high. The financial documentation shows that it had a relatively minimal, temporary overall impact upon revenues. The Tribunal notes that revenues have returned to and exceeded pre-covid-19 levels.
The Tribunal acknowledges that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 24 May 2018.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes from the current Organisation Chart provided in written evidence, that the business is operating on a staffing ratio of 16 persons including the visa applicant. There are 21 roles in total reporting to the visa applicant’s role, including the 2 Managers and 3 Supervisor level roles including Marketing and Production functions. The visa applicant reports directly to the Co-Directors who are not involved in the day-to-day front of house running of the operation due to other interests in 3 additional businesses which occupy them. The Tribunal accepts the Organisation Chart as well as the letter from their Accountants and ASIC Company data as evidence of the 4 businesses under the ownership structures. If the hours the restaurant operates are considered as well as the owner’s other interests and responsibilities it is clearly impossible for them to manage the business on a day-to-day basis without a Manager. It is accepted that this was not the case at time of application however a letter was provided to the delegate, by the accounting firm supporting the Directors indicating that the other businesses were in development.
The Tribunal accepts as fact that the Directors do not work full-time in the business on a day-to-day basis but operate at the Director level overseeing high level company requirements for this and 3 other businesses and subsequently, they rely heavily upon the visa applicant’s expertise to manage the overall operation. The visa applicant has operated in this position since March 2018.
Regardless of the skilful utilisation of technology, the Directors are unable to undertake the daily duties of Café or Restaurant Manager unless physically present for a substantial portion of the extensive 7 day per week, (in-excess of 60 hours) customer facing operating hours of the business. Nor is it likely that the operation under review could successfully sustain itself, maintain quality outputs or meet its’ legal responsibilities in relation to OH & S, General HR matters, safe food handling governance requirements, licensing and sales regulations and Covid-19 Marshall stipulations when required without a relatively autonomous Restaurant Manager.
The Tribunal observes that a considerable additional impost has been placed upon restaurant outlets since the advent of the current Covid-19 pandemic and the implementation of resultant additional operating markets, processes and procedures. This must undoubtably add even more immediate leadership responsibilities to this Manager’s role.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Café or Restaurant, under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully, and directly operating a business in Australia.
The Tribunal has been provided with a range of, Profit and Loss Statements and ATO Taxation Returns, including most recently, those produced for FY 2020. In addition, relevant current BAS documents were provided, all of which correlated appropriately.
ASIC Registration details were also researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN, 53 727 322 866 which has been active since 9 April 2016 and is due for review on 9 April 2023. The Tribunal has in addition perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The most recent contract of employment dated 5 July 2022, stated the salary as $68,000 plus the Superannuation Guarantee which is currently 10.5%. The total current remuneration package is $78,200. This is clearly not a salary package you would expect for a Supervisor level position, it is however what the Tribunal might expect to see for a Restaurant or Café Manager role.
It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is noted favourably by the Tribunal that the visa applicant has been employed for a considerable number of years, (approximately 4.5 years).
The Tribunal notes that the business appears to have substantial and growing revenue and stable proportionally aligned profit. The long-term stability of the nominating entity in an ever increasing and competitive market attests to the nominator’s ability to operate successfully.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services, particularly in light of the nominator’s stated need for focus upon other business activities. The Tribunal is aware that the workforce is highly mobile, that the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses.
The Tribunal is also cognisant of industry competitor’s actively targeting competing businesses and trying to poach key staff to overcome their staff shortages or obtain a market advantage. The Tribunal notes that this mechanism is in fact how the visa applicant was initially employed by the nominator. Additionally, it is observed that these roles are not always highly sought after by appropriately qualified personnel as they are relatively modestly rewarded but also present complex and challenging workloads, hours of operation and responsibilities. An additional impost is the worsening current shortage of qualified staff.
It is clear, that this has become even more difficult since the advent of the Covid-19 pandemic and the subsequent staff shortages because of the cessation or current curtailing of temporary and permanent immigration due to previously mandated border closures. It is estimated that this will take 2-3 years to return to normal levels. The Tribunal also acknowledges the long-term drag operating from the Eastern States which offers potentially greater remuneration and advancement. This is further accentuated by the remuneration inflation caused by the mining industry which dominates the Western Australian economy.
The Tribunal notes the media release on 22 August 2022 by the WA Government’s Tourism Minister announcing a $4m funding boost to develop tourism and hospitality. Its stated aim is; ‘The Tourism Workforce Development Program will fund short-term programs to address the current shortage of workers while also building a pipeline of talent for the future.’
Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present-time job vacancies and recruitment challenges incontrovertibly demonstrate a deficit of suitably qualified potential employees in many sectors. This industry is recognised as one such sector. The problem, as already stated, is exacerbated in regional areas or smaller States and Territories, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source.
Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
It is noted by the Tribunal that the most recent ANZ Roy Morgan Consumer Confidence and Business Confidence Surveys, (October 2021) shows an increasingly positive level of consumer and business confidence in the economy.
The recent Australian Institute of Company Directors, (AICD), Sentiment Index Report, published 15 December 2021, also demonstrates a positive trajectory for the economy and employment.
‘More than two-thirds of directors are confident in Australia’s 12-month economic outlook. Nearly two thirds (64 per cent) believe business will be on sure footing in 12 months time, with positive indicators like investment, turnover and profits expected to grow.
While the overall outlook from directors is positive, key challenges are emerging for the post-COVID era.
Directors have identified workforce shortages as the top economic challenge facing Australian businesses, above COVID-19, climate change and Australia’s relationship with China.’
The Tribunal anticipates the likelihood of this trend continuing and potentially accelerating for some time. This is invariably exacerbated in isolated regional locations such as the location of the business currently under review. The Tribunal notes that the current youth unemployment rate is 6.3%. The overall rate of unemployment in Western Australia was at a 13-year low of 2.9% as of April 2022, ranking WA the lowest in Australia in both categories. WA’s participation rate was also the strongest in the nation, 69.3%.
Recent Australian Bureau of Statistics data released on 16 June 2022, shows that in May 2022 there were approximately 500,000 job vacancies nationwide, the number having increased by 13.8% in the 3 months to May. This level of vacancies is more than double the level experienced in February 2020, immediately prior to the Covid-19 pandemic. The July 2022 unemployment rate for WA is 3.2%.
The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has been provided with the visa applicant’s employment contracts. The most recent contract of employment dated 5 July 2022, stated the salary as $68,000 plus the Superannuation Guarantee which is currently 10.5%. The total current remuneration package is $78,200. As previously stated, this is clearly not a salary package you would expect for a Supervisor level position, it is however what the Tribunal might expect to see for a Restaurant or Café Manager role.
The Tribunal accepts that the nominee’s current annual salary as appropriate and is reflective of their experience relevant to the nominated position and the magnitude of the business. It notes that the other employment conditions are in-line with the current relevant Awards, as are the conditions of employment and observes that the remuneration falls in the mid to upper quartile of similar roles in similar locations.
The Tribunal researched the salaries offered for comparable positions. It is satisfied that the remuneration and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. It again acknowledges that the other work-place conditions stated in the contract align with current legislative and regulatory requirements. Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations and the extended staffing hours required due to the mandated operating hours of the outlet. It is self-evident from the previously stated evidence that the nominator cannot operate this business entity without a relatively self-contained general management structure in place unless they are actually present to manage the front of house and back of house operations and the day-to-day management responsibilities themselves, for each of the 7 operating days per week.
Contrary to the delegate’s decision the Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is satisfied that reg. 5.19(4)(h)(ii)(B) is met.
Evidence was presented to the Tribunal regarding the recruitment processes. Evidence of advertising in 2 major national and international employment online recruitment sites was provided. Only 2 applications were received as a result of the advertising. Likewise, evidence of business and personal network utilisation was proffered. The visa applicant approached the nominator following a meeting in another establishment in which he worked. Evidence was provided explaining why the other 2 applicants were not suitable and an explanation regarding the ongoing challenges associated with attracting and retaining suitable employees. The Tribunal accepts this as fact which is supported by its knowledge of the local recruitment and employment conditions which have tightened substantially in the last 2-3 years.
Additional Labour market Testing research was provided as was evidence in support of the salary determination. The Tribunal accepts as accurate the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal is satisfied that an appropriately conducted and fair recruitment process was undertaken.
The Tribunal acknowledges at the time of this decision that there are a very large number and range of Café and Restaurant Manager roles, as listed by 1 popular employment web site, currently available throughout Australia, (more than 20,000) and approximately 2,000 associated roles under recruitment in Western Australia. The demands of the job, location, lack of advancement potential, hours and responsibilities of this role may not have proven overly attractive to some candidates. The relatively isolated regional Western Australian location, a substantial distance from Perth, (300 kilometres), in contrast to the much larger eastern seaboard may also provide a substantial negative employment circumstance, as does the potential engagement by the dominant mining industry, thus further limiting the already potentially restricted candidate pool.
The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the 4.5 years which have elapsed since the original application was made, during which time the visa applicant has been employed by their current employer and the candidate market has very substantially tightened.
The Tribunal has formed the view that it is highly unlikely that the nominator would employ a person for many years at this level of remuneration if they were not actually performing the Restaurant Manager level tasks as stated. If all that was required was a Supervisor level appointment, this could have been achieved at a substantially lower impost on the profit of the business. It is, as previously stated, observed that the senior positions as well as all other roles in the organisation report to this role. Once again, it is accepted that the Directors of the nominating business are engaged in other external business pursuits. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument.
The Tribunal has formed a different view. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 141111 for Café or Restaurant Manager and the stated duties of the visa applicant. The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference. Once again, it notes that the business owners clearly occupy the roles of Directors within the business. This assessment is supported by written evidence presented to the Tribunal regarding competing responsibilities and ASIC data base searches by the Tribunal.
The substantial operating hours of the business coupled with the number of staff clearly indicates the need for an autonomous Café or Restaurant Manager to operate and manage the business. This leadership role can-not be undertaken by the Directors unless they are relatively constantly present and without other competing external business responsibilities. This would by necessity most likely lead to a considerable degree of autonomy being associated with the role, as is reasonably expected of a Café or Restaurant Manager in an ANZSCO level 2 designated position. The autonomy and responsibility in this role are demonstrated, by a range of documentation showing the daily high-level leadership and management tasks and responsibilities.
The Tribunal acknowledges the substantial number of References and letters of support provided in relation to the visa applicant which included statements from the local Federal Member of Parliament, the local Member of the Legislative Assembly, the Chief Executive of the local Council and the President of the local Chamber of Commerce and Industry. These and the substantial media/press articles featuring the visa applicant demonstrate clearly that the visa applicant is a prominent member of and participant in the community and business fraternity. This is something you would expect to observe in relation to an autonomous business Manager rather than a Supervisor.
The visa applicant would most likely report performance in all KPI areas via established systems. This coincides with the Tribunal’s expectations of a Café or Restaurant Manager directly reporting to the Owners/Directors of a business.
The Tribunal acknowledges that this is a mid-sized FMCG services operation with a growing mid-level annual turnover. It is also observed by the Tribunal that is a financially successful operation with increasing profitability, in part most likely, as a direct result of good management, which has been attributed by the Directors to the expertise of the visa applicant. The Tribunal observes that this restaurant /coffee roasting business has traded successfully for a considerable time under the guidance of the visa applicant. The financial evidence demonstrates that the business continued to survive regardless of the impacts associated with the Covid-19 pandemic. It is in no doubt the visa applicant requires a degree of flexibility and subsequent autonomy performing the many and varied work duties, as you might expect in such an operation.
It is aware that most, if not all Café or Restaurant Managers assist from time to time with the lower order manual tasks which make up the core business. This in no way diminishes their key role as a Restaurant Manager, on the contrary it serves to reassure customers of their intrinsic value to the enterprise whilst training and mentoring the staff as to appropriate service levels.
The Tribunal has concluded that a Café or Restaurant Manager is required to oversee the business and does operate largely in-line with the ANZSCO 141111 specifications to meet logistic, work health and safety, safe food handling governance requirements, whilst satisfying customer service, product quality expectations and requirements. An additional level of expertise is required to successfully supervise the coffee roasting aspects of the enterprise. The Restaurant Manager must also comply with licensing legislation plus acting when required as the Covid-19 Marshall.
The position of Café or Restaurant Manager, ANZSCO 141111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to a ‘Satisfied’ Form 1404 issued by an appropriate WA based RCB, dated 24 May 2018. It is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton

Member
ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ 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).

[2022] AATA 3123

23 August 2022

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