Top Shelf Blokes Pty Ltd (Migration)

[2022] AATA 4170

Top Shelf Blokes Pty Ltd (Migration) [2022] AATA 4170 (24 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Top Shelf Blokes Pty Ltd

REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)

CASE NUMBER:  1930768

HOME AFFAIRS REFERENCE(S):          BCC2018/983152

MEMBER:De-Anne Kelly

DATE:24 October 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 24 October 2022 at 10:16am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cook – Tribunal cannot be satisfied that the employee will be employed on a full-time basis in the position for at least 2 years –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, r 5.19

CASES
Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA3074

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 October 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).

2. The applicant applied for approval on 1 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: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(C) of the Regulations because despite the positive assessment by the Regional Certifying body it appeared that the applicant had not undertaken a recruitment process and as such did not satisfy the requirement that the position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as that place.

5. The applicant appeared before the Tribunal on 27 September 2022 to give evidence and present arguments. This was a joint hearing of two employer nominations by the same nominator namely case number 1930768 nominating a Chef for the Warwick restaurant and case number 1912974 nominating a Restaurant Manager for the Tweed restaurant.

6. The applicant was represented in relation to the review by Ms Stephanou.

   For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   Section 359AA of the Act

7. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act (Cth) 1958, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

   Section 359AA provides as follows:

   (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)   if the Tribunal does so—the Tribunal must:

   (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

9. On 1 March 2018, the applicant Top Shelf Blokes Pty Ltd ABN: 76 608 890 526 trading as Tandoor on Warwick and Tandoor on Tweed lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Chef on $55,300 to be employed at Shop 2/40 Albion Street, Warwick QLD 4370 in favour of Mr Harvinder Singh.

10. A range of documentation was provided and considered by the Tribunal including ASIC registration, photos of the interior and exterior of the restaurants, supplier invoices, training plans and training invoices, menus, BAS statements, organisation charts, payroll summaries, lease agreements, letters of engagement and job descriptions for the nominees, promotional material, purchase agreement for the Tweed business, Council inspections of premises, Bank statements for the nominator from 2019, Regional Certifying body assessment, Payslips, PAYG summaries and Notices of assessment for the nominee,

11. The Tribunal collated documents across both files since many documents for one case were uploaded by the applicant for the other file.

12. The business was established in Tweed on 20 Nov 2016 and in Warwick on18 February 2018 by the owner Mr Jatinder Singh Sangha who gave an overview of the businesses which are both under the same legal entity under the same ABN with the financial statements representing the combined status of both restaurants. Mr Sangha works across a range of tasks some 40 hours per week in the Warwick restaurant since they do not presently have a restaurant manager employed.

13. The Tribunal went through the organisation charts provided for both restaurants with Mr Sangha identifying each staff member by name, their position, hours per week and pay rate which is summarised below.

    Term of employment of the visa holder: reg 5.19(4)(d)

14. 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.

15. The Tribunal asked the applicant about the lease agreement for Warwick which commenced on 1 February 2020 with end date of the initial term as 31 January 2022 with a renew option as follows “1 options to renew for a further 2 years” which would take the extension to 31 January 2024 or some 1 year and 4 months rather than at least two years as required to satisfy reg.5.19(4)(d)(i).

16. The Tribunal put concerns about the lease expiring for the Tweed premises as well.

17. Following the hearing the applicant provided evidence of intention to renew both leases and as such the Tribunal puts no weight on the leases.

18. The Tribunal will now consider the financial viability of the applicant and their ability to meet their business obligations such that the employee will be employed on a full-time basis in the position for at least 2 years.

19. The Tribunal notes the judgment of Judge Egan in Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA3074 at [5] where his Honour stated that the Tribunal was entitled to considered the financial viability of the applicants business in considering r.5.19(3)(d)(i) which is equally applicable to r.5.19(4)(d)(i) since the wording of the legislation is similar with r.5.19(3)(d) stating “the person will be employed on a full-time basis in the position for at least 2 years’ while r.5.19(4)(d)(i) states “the employee will be employed on a full-time basis in the position for at least 2 years”.

    Contrary to the applicant’s submissions, the Tribunal was entitled to consider the financial viability of the applicant’s business when considering whether the company was able to meet the requirement that it employ Ms Kaur on a full-time basis, for a period of at least two years, as provided for in r. 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). In assessing the evidence the Tribunal has taken into account of the remarks of his Honour In Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [22], and [28] – [30], Logan J accepted that a company’s financial viability was a matter to be taken into account when assessing whether or not a business was financially able to support the employment of a person for at least a two (2) year period and that it is not illogical, on the material which the Tribunal had, for the Tribunal not to be satisfied that the position could be supported on business performance for a further two years.

20. This view was supported by Judge Greenwood in the subsequent case Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA.

21. Financial documents were provided and are summarised below.

Year	2022	2021	2020	2020	2019	2019
Sales	1,206,734	1,639,867	726,209	583,720	783,214	563,414
Wages	273,323	307,479	300,226	300,226	388755	243,687
Super.	26,248	29,236	33,737	28,521	36853
Expenses	715,867	1,579,945	665,750	635,198	665,160	518,226
Profit	56,236	59,922	60,459	-     51,478	118,054	45,188
Super.	107,859	84,926
ATO	14,653	49,653

1. It is noted that there were two different sets of financial documents for the FY’s 2019 and 2020 however the Tribunal places no weight on this as it is FY 2021 and 2022 and the prospective financial capability of the applicant that is material to a decision rather than figures from some 2 years ago.

2. The Tribunal noted the decline in revenue from $1,639,867 in FY 2021 to $1,206,734 in FY 2022 and the director advised that he is a partner in a car business which is under another legal entity however there is a car detailing business which is operated under Top Shelf Blokes Pty Ltd. The car detailing business had to cancel some contracts with car dealers during that year as they had difficulties with staff shortages. In FY 2021 they had a dealer’s licence and were selling “one to two” cars under the Top Shelf Blokes Pty Ltd entity but ceased this association with Top Shelf Blokes Pty Ltd in FY 2022 so this accounted for the disparity in revenue between FY 2021 and FY 2022.

3. The Tribunal raised with the applicant the debt to the ATO of $14,653 and the unpaid superannuation of $107,859 in FY 2022. Following the hearing the accountant for the business advised and provided an Integrated Client Account printout showing that the ATO debt had been cleared. They stated that the superannuation owing would be paid at $3,800 per month over a 24 -month period and was easily achievable with the cash flow projections they had made for FY2023.

4. The Tribunal summarised as below the information from Mr Sangha regarding staff numbers, names, position, hours worked and status and then assigned an hourly rate based on the average pay for that position from Payscale. The Tribunal carefully clarified the hours of each employee by checking again with Mr Sangha on the hours he stated they worked per week.

5. It should be noted that Mr Sangha advised that he worked some 40 hours per week in the Warwick business and was remunerated whenever he needed money which was $10,000 recently.  For position #2 as Restaurant Manager, the director advised that although the position was presently vacant, he was interviewing people for this position and intended to fill the position. Position #5 for a cook was going to be filled next month as he had a person from the Gold Coast who was filling this position. Position #6 for a Cook may not be filled depending on the performance of the other cook in position #5. Cook #14 is a position that the director is interviewing for, and it is evident that he intends to fill this position which is presently vacant.  Since these positions are going to be filled and the director is actively seeking to fill them, the Tribunal considers it is reasonable to include their salaries in the table. The director advised that the salary for the Restaurant Managers was $65,040 and for the Chef $63, 540.

Position	Staff Member	Status	$/hour	Hours	Salary
No.	Warwick	1930768
1	Director	Mr Sangha	Casual	40	10,000
2	Res Mgr.	Vacant	F/T	35	65,040
3	Chef	Nom. Harvinder	F/T	35	63,540
4	Cook	Kuljit Kaur	F/T	22.71	35	41,332
5	Cook	Vacant	F/T	22.71	35	41,332
6	Cook	Vacant	P/T	22.71	20
7	Wait & kitchen	Jessie Ferguson	Casual	19.91	30	31,060
8	Wait & kitchen	Gagandeep Kaur	P/T	19.91	25	25,883
9	Wait & kitchen	Kirandeep Kaur	Casual	19.91	32	33,130
10	Wait & kitchen	Harjot Singh	P/T	19.91	22	22,777
Wages Warwick	324,094
Tweed	1912974
11	Res Mgr.	Nom. Gurpreet Chahal	F/T	35	65,040
12	Chef	Navinder Singh Wander	F/T	35	55,300
13	Tandoor Cook	Tripatjot Kaur Ghuman	F/T	22.71	35	41,332
14	Cook	Vacant	F/T	35
15	Wait & kitchen	Dishad Ali	F/T	18.02	35	32,796
16	Wait & kitchen	Kirandeep Kaur	Casual	19.91	38	39,342
17	Wait & kitchen	Harpreet Kaur	Casual	19.91	32	33,130
18	Wait & kitchen	Rashpal Singh	Casual	19.91	30	31,060
Wages Tweed	298,000
Total wages both restaurants		622,094

1. The Tribunal calculated the total of the wages as provided by the director across the two restaurants as some $622,094 rather than the $273,323 shown in the financial statement for FY 2022.

2. The Tribunal put to the applicant under s359AA of the Act that the actual total wages for the businesses would have resulted in a loss in FY 2022 of some $292,535 rather than a profit of $56,236 without taking into account the additional superannuation costs that would have been incurred.

3. This is not a minor difference, and the Tribunal does not consider that all of these staff would have been employed after 30 June 2022. If it gave consideration to this information, it may conclude that the applicant’s real payroll was much greater than their capacity to service this payroll through their revenue and that they did not have the financial capacity such that the employee will be employed on a full-time basis in the position for at least 2 years.

   Post hearing

4. Following the hearing the applicant provided letters regarding the leases on the restaurant properties, ATO account summaries, letter from the agent dated 11 October 2022 and letter from the accountant dated 7 October 2022. A detailed spread sheet was also provided showing monthly financial forecasts for the 12 months from November 2022 to October 2023 for each restaurant, organisation charts for both the restaurants and a wages summary for the staff at both restaurants.

5. The wages summary from the submission was collated and is shown below compared against the “Hearing advice” given in the hearing and the calculations the Tribunal made based on average Payscale hourly rates as well as the advice by the director on wages paid to the staff.

Position	Staff Member	Status	Hearing	Submission
Warwick	1930768	Advice
Director	Mr Sangha	Casual	10,000
Res Mgr	Vacant	F/T	65,040
Chef	Nom. Harvinder	F/T	63,540	63,540
Cook	Kuljit Kaur	F/T	41,332	41,268
Cook	Vacant	F/T	41,332
Cook	Vacant	P/T
Wait & kitchen	Jessie Ferguson	Casual	31,060	41,840
Wait & kitchen	Gagandeep Kaur	P/T	25,883	18,828
Wait & kitchen	Kirandeep Kaur	Casual	33,130	28,765
Wait & kitchen	Harjot Singh	P/T	22,777	25,104
Wages Warwick	324,094	219,345
Tweed	1912974
Res Mgr	Nom. Gurpreet Chahal	F/T	65,040	65,540
Chef	Navinder Singh Wander	F/T	55,300	41,268
Tandoor Cook	Tripatjot Kaur Ghuman	F/T	41,332	41,268
Cook	Vacant	F/T
Wait & kitchen	Dishad Ali	F/T	32,796	39,748
Wait & kitchen	Kirandeep Kaur	Casual	39,342	32,688
Wait & kitchen	Harpreet Kaur	Casual	33,130	32,688
Wait & kitchen	Rashpal Singh	Casual	31,060	24,843
Wages  Tweed	298,000	278,043
Total wages both restaurants		622,094	497,388

1. It is noted that in the post hearing submission there is no provision for position #2 the Restaurant Manager and position #5 the cook. For position #2 as Restaurant Manager, the director advised that although the position was presently vacant, he had interviewed people for this position and despite Warwick being a small town he intended to fill the position. Position #5 for a cook was going to be filled next month as he had a person who had been away and lived at the Gold Coast but was moving to Warwick and was filling this position. The director had advised that the Nominee Mr Chahal had been interviewing prospects to fill the vacant Cook position in the Tweed restaurant. There is also the anomaly that the chef in Warwick is paid $63,540 while the same position in Tweed is paid $41,268,

2. No explanation has been given as to why these positions, which were important and were about to be filled during the hearing, are not provided for in the wages summary. If these positions are provided for in the wages summary it would represent an additional $65,040 for the Restaurant Manager although this amount could be less than that for the Restaurant Manager for Tweed and maybe as low as $55,900 and $41,268 for the cook both of which are to be employed in the Warwick restaurant. This would represent an additional wages bill of some $97,168 with a commensurate additional superannuation cost of some $10,631.

3. The spread sheet was not summarised but presented on a monthly basis, so the Tribunal has summarised the results for the 12 months from November 2022 to December 2023 for each restaurant and the total for the 12 months and compared this to the FY 2022 results as below. It is noted that the revenue has been forecast to increase from $1,206,734 to $1,674,248 or some 39% to 40% increase.

Top Shelf PL	Warwick	Tweed	Total 12 mths.	FY 2022
Revenue	791,005	883,243	1,674,248	1,206,734
Wages	223,700	283,700	507,400	273,323
Expenses	753,549	866,225	1,619,774	715,867
Profit	37,456	17,018	54,474	56,236

1. The letter from the accountant states that both restaurants have the “margin” to increase their sales and target the right market by providing good family deals and they will spend 2% of business sales on marketing. This marketing amount is included in their forward projections together with the $3800 per month to pay the superannuation.  The agents letter states that the marketing will be undertaken on Facebook and “Google imprints” and residential marketing through door-drop marketing including restaurant vouchers.  The agent states that both business’s projected cash flow provides a positive net balance which evidences the client’s ability to pay the wages in accordance with contracted hours and the organisational charts as well as meeting their financial obligations. The agent states that based on the future projection of the financial capacity of the business, the applicant has the capacity to meet its employment obligations in regard to the nominee for a period of at least two years.

2. The Tribunal will carefully consider all the evidence.

3. The first matter is the question of the new staff which the director said he was actively seeking to recruit. Even if the Tribunal only includes the Cook for the Warwick restaurant who is moving from the Gold Coast the additional wage is $41, 268 and the additional superannuation is $4,126 for an additional expense of $45,395. If this is included in the total for the 12 months from November 2022 to October 2023 it reduces the profit to $9,079.

4. If the Restaurant Manager on $65,040 or even $55,900 and Cook on $41,332 for Warwick are included the additional wage and superannuation expenses are high. If this is included in the total for the 12 months from November 2022 to October 2023 it reduces the profit of $56,236 to a significant loss of some $50,649.  If the wages and superannuation for the cook for the Tweed restaurant is included and the director advised that they are actively seeking to fill this position the loss will be even greater.

5. No explanation has been offered as to why these staff which the director needed at the time of the hearing are now excluded from the staff payroll.  The Tribunal as a result can place limited weight on the wage and superannuation expenses in the projected financials for the period November 2022 to October 2023.

6. The projected revenue for the period November 2022 to October 2023 is $1,617,248 or an increase of $467,514 or some 39% to 40% increase in revenue. This is to be generated from the marketing program. There is no sound evidence to show that this is achievable. There is no business plan showing the demographic makeup of Warwick and Tweed and how they will be able to increase market share against other competitors. There are no details on experimental marketing programs they or other restaurants have run in the past on Facebook, Google imprints and door-drop with restaurant vouchers to demonstrate the response and increased revenue they can reasonably anticipate from such marketing programs.

7. There are no quotes or correspondence from digital marketing companies or experts on the costs and effectiveness of such programs. There is no scope on the nature of the digital marketing program that will be run and sample advertisements that will be used. There is no information from Facebook or Google on how effective these advertising programs can be and the anticipated revenue increase. There is no evidence that the applicant has had flyers or restaurant vouchers printed to distribute to households nor is there evidence of attempts to engage the services of a letter box drop business in both Warwick and Tweed to distribute these flyers through letterboxes in those regions. The Tribunal considers that the applicant has aspirational revenue figures that are generated with the intent to cover the large wages and superannuation expenses and the other increased costs without the substance to show that the marketing plan is in train or that it will achieve the revenue results forecast.

8. There is also the matter of the car detailing business which operates under the nominating company Top Shelf Blokes Pty Ltd. There is scant evidence of whether this business is profitable or making a loss and what impact it will have on the projected figures for the period November 2022 to October 2023. As such the Tribunal can place limited weight on the revenue forecast for the period November 2022 to October 2023.

9. There is the concern that if the projected profit is not likely to be achieved for the forecast period November 2022 to October 2023, the business will be unable to repay the $3,800 per month owed in superannuation payments which is money that belongs to the employees not the nominator.

10. The Tribunal has considered the assurances of the accountant that they believe the businesses will trade profitably and easily can support full-time sponsored workers as per the cash flow forecast however there is scant evidence to demonstrate the basis on which the accountant is confident the marketing program will achieve the revenue forecast other than it being aspirational. There is no mention from the accountant or the agent as to why the staff being recruited are not listed in the staff expenses and no mention from them of the impact the car detailing business may have on the financial forecast. For these reasons the Tribunal can place limited weight on the agent and accountants’ letters and assurances.

11. The Tribunal has examined the BAS statements provided however they cover the FY 2022 and are broadly consistent with the financial statement for FY2022 so do not cast light on the forecast from November 2022 to October 2023.

12. The Tribunal places weight on the Financial Statement for FY 2022 and the list of staff given by the director in the hearing which he states are currently working or soon to be recruited to fill vacancies and the conundrum that the business on those figures cannot afford the wages and superannuation expense of these staff without a significant loss. Even if the Tribunal takes the amended staff payroll of $497,388 put forward by the applicant after the hearing the loss based on FY 2022 figures would be some $167,829.

13. Taking all the evidence into account the Tribunal cannot be satisfied that the employee will be employed on a full-time basis in the position for at least 2 years because the staff expenses are such that the business would make a substantial loss based on the FY 2022 figures and the revenue forecast for the period November 2022 to October 2023 is aspirational with scant evidence to support the revenue forecast from the marketing campaign as well the uncertainty over the impact of the car detailing business which operates under the nominator and for which there is scant information. Added to this is the concern over the significant superannuation debt owed to employees and which may not be re-paid based on the aspirational revenue forecasts.

14. Accordingly, the requirement in reg 5.19(4)(d)(i) is not met.

15. Accordingly, the requirement in reg 5.19(4)(d) is not met.

16. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

17. The Tribunal affirms the decision under review to refuse the nomination.

    De-Anne Kelly
    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).