Tulum Turkish Restaurant Pty Ltd (Migration)

[2024] AATA 2965

Tulum Turkish Restaurant Pty Ltd (Migration) [2024] AATA 2965 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tulum Turkish Restaurant Pty Ltd

REPRESENTATIVE:  Mr John Kotsifas

CASE NUMBER:  2304130

HOME AFFAIRS REFERENCE(S):          BCC2022/339371

MEMBER:George Hallwood

DATE:6 August 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 August 2024 at 3:20pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – chef – capacity to employ nominee for at least two years – financial records show past and present performance – size and scope of operations, tasks of nominated position and nominee’s work in role – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), rr 1.03, 2.57A, 5.19(3)(a), (9)(g)

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 22 February 2023 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).

2. The applicant applied for approval on 18 February 2022. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(g) of the Regulations because the application applies to the Direct Entry stream and the delegate was not satisfied that the nominator’s business has the capacity to employ the identified person for at least two years paying them at least the annual market salary rate for the occupation each year.

5.    Mr Nazif Kemal Barut appeared before the Tribunal on behalf of the applicant on 6 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mehmet Akbas, the identified nominee in this matter who also gave evidence.  

6.    The applicant was represented in relation to the review.

7.    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

8. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Application requirements – reg 5.19(4)(a)

9. 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).

1. 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.

2. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019.

3. Departmental documents demonstrate that the application:

• Was made in accordance with form 1395 (Internet);

• identifies the position of Chef de Partie;

• identifies a person, Mr Mehmet Akbas, in relation to the position;

• identifies an occupation of Chef - 351311 in relation to the position,

• identifies the subclass - Employer Nomination Scheme visa subclass 186 and stream - Direct entry to which the nomination relates;

• was accompanied by the fee mentioned in reg 5.37;

• includes a written certification by the nominator that they have not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act);

• was accompanied by the nomination training contribution charge the nominator was liable for; and,

• identified the annual turnover for the nomination.

1. 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)

1. 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.

2. The application form contained a question about adverse information: Is there any adverse information to declare about the applicant or a person associated with the applicant, including any information relating to the contravention of Australian laws, insolvency, sponsorship breaches and/or other circumstances which might reasonably be considered adverse information? To which the applicant answered ‘No’.

3. There is nothing before the Tribunal to suggest there is adverse information known to Immigration about the nominator or a person associated with the nominator.

4. 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)

1. 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.

2. In this instance, the relevant State or Territory is Victoria, the relevant occupation is Chef and the date of application is 18 February 2022.

3. Consumer Affairs Victoria does not list any licencing, registration or membership requirements in Victoria to perform tasks of the kind to be performed in the occupation of Chef. The applicant told the Tribunal that they are not aware of any such licencing, registration or membership requirements in Victoria.

4. 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)

1. 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.

2. There is nothing before the Tribunal that suggests the applicant has breached any employment laws in the States or Territories that the applicant operates a business or employs people. At the hearing the applicant told the Tribunal, and the Tribunal is satisfied, they had not breached any employment laws.

3. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

Training contribution debts – reg 5.19(4)(da)

1. 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.

2. There is evidence in the Department’s file that the SAF levy has been paid. At the hearing the applicant told the Tribunal that all nomination contribution charges had been paid.

3. 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)

1. Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.

2. The applicant provided financial and taxation records demonstrating that the nominator is actively operating a business in Australia and ASIC records satisfying the Tribunal of lawful operation of the business. There is nothing before the Tribunal to indicate that the business is inactive or unlawfully operating.

3. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.

Labour hire businesses – reg 5.19(9)(b)

1. 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.

2. There is nothing before the Tribunal that suggests the nominator is involved in labour hire to other unrelated businesses. At the hearing the applicant told the Tribunal that the nominator was not involved in labour hire.

3. 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)

1. 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.

2. The application identified the need for Mr Mehmet Akbas to be employed in the position of Chef under the direct control of the nominator. An undated letter from Mr Coskun Uysal, Head Chef and an owner of Tulum Restaurant provided to the Department with the application provides support for the genuine need to employ Mr Akbas:

   This letter is to reference and outline the contribution Mehmet Akbas has made and continues to make to Tulum. Since he started, Mehmet has continuously demonstrated an outstanding work ethic, attention to detail, and great culinary skills.

   He has not only been a integral part of our kitchen and business, but he continues to evolve and grow, bringing not only innovation and creativity to the kitchen, but the ability to work alongside myself, as head chef and understand his vision and concept of what Tulum should be.

   Mehmet has developed systems which has reduced our food wastage, reduced our costs and streamlined processes. This has and will continue to not only save our business money but he has been pivotal in our ability to pivot during covid challenged times, lockdowns and closures.

   He continues to contribute to our business on a daily basis, his mentoring of junior staff, his ability to communicate with all sections of the business (front / back of house), the ability to translate his imagination into splendid food and menu ideas.

   Mehmet is an integral part of the Tulum team, and we simply couldn’t imagine a business without him. He is truly an asset and valued member, and we are so grateful to have him.

3. The Tribunal is satisfied that a specialist Anatolian cuisine fine dining restaurant turning over almost $1.7 million per annum has a genuine need for a Senior Chef de Partie in support of the Head Chef and the rest of the kitchen team as identified in the organisation chart and position description supplied to the Tribunal. The most recent two years of profit and loss reports demonstrate the scale of the business can also support this requirement. The undated letter above satisfies the Tribunal that the nominee is best placed employed within the business under the nominator’s direct control.

4. For the reasons outlined above the Tribunal is satisfied that the need for the nominee to be employed in the position under the nominator’s direct control is genuine.

5. 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)

1. Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.

2. 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.

3. 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.

4. 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.

5. On the nomination form the applicant declares that they will provide full-time employment for the visa applicant for at least two years. Schedule 1 to the Employment Agreement dated 1 August 2024 states, amongst other things: ‘Your employment will be ongoing for minimum 2 years from the date your 186 visa is approved’; and, ‘You will be appointed as Senior Chef de Partie on a full-time basis’.

6. In the Employment Agreement dated 1 August 2024 there is nothing in the terms and conditions of the identified person’s employment that excludes the possibility of extending the period of employment.

7. The applicant has identified to the Tribunal $75,000 per annum as the annual market salary rate and provided financial records to satisfy the Tribunal 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.

8. 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)

1. Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033 ($250,000). 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 IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

   ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT) $53,900 applies as the application was made before 30 June 2023, 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).

2. There are two different methods of determining annual market salary rate set out in the instrument IMMI 18/033. The first is to be used where there is an Australian worker performing equivalent work. The second method is to be used where there is not an equivalent Australian worker. This criterion is to be applied at the time of decision. making the nominator’s methodology used at the time of application irrelevant to the Tribunal in coming to its decision now more than two years later.

   IMMI 18/033

   7 Method for determining the annual market salary rate where an Australian worker is performing equivalent work

   (1) For the purposes of subregulation 2.72(17) of the Regulations, where a there is a fair work instrument, state industrial instrument or transitional instrument applicable to an Australian worker who is:

   (a) employed in the same workplace as the nominee; and

   (b) at the same location as the nominee; and

   (c) performing equivalent work to the nominee; the annual market salary rate for an equivalent nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an Australian worker contained in those instruments.

   (2) Where there is no fair work instrument, state industrial instrument or transitional instrument that is applicable to an Australian worker who is:

   (a) employed in the same workplace as the nominee; and

   (b) at the same location as the nominee; and

   (c) performing equivalent work to the nominee; the annual market salary rate for an equivalent nominated occupation or an occupation in relation which a position is nominated under regulation 5.19 of the Regulations, must be determined by reference to relevant employment documents.

   8 Method of determining the annual market salary rate where there is not an Australian worker performing equivalent work

   For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:

   (a) where there is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.

   (b) Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.

1. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

2. The applicant submitted to the Tribunal that the applicant does not employ an Australian equivalent worker in the same position as the nominee (ie senior Chef de Partie). The submission indicates the annual market salary rate has been determined in accordance with s 8 of Instrument IMMI 18/033 in this case using the relevant award - Restaurant Industry Award MA000119 which identifies a Chef de Partie at Cook grade 5 (tradesperson) at the highest level (6) in the award at a rate of pay of $58,567.60 per annum. The nominee is being paid $75,000 per annum.  The Award allows for an annualised wage arrangement by adding 25% to the award rate to cover allowances taking the award rate up to $73,209.50. The applicant told the Tribunal this is what the employer and nominee have agreed in writing in this case. The annual market salary rate and annual earnings in this case were in relation to a senior Chef de Partie which, along with advertisements and other information is how the applicant determined $75,000 was the correct annual wage as well as annual market salary rate.

3. For these reasons the requirements of reg 2.72(15)(c) are met.

4. The annual market salary rate excluding any non-monetary benefits for the occupation is $75,000 which is not less than the applicable temporary skilled migration income threshold of $53,900. For these reasons the requirements of reg 2.72(15)(d) are met.

5. The nominee’s annual earnings in relation to the occupation are $75,000 and so are not less than the annual market salary rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.

6. The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation are $75,000 and therefore are not less than the temporary skilled migration income threshold of $53,900. For these reasons the requirements of reg 2.72(15)(f) are met.

7. There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

8. 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)

1. 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.

2. As earlier stated, there is no Australian equivalent in this case. The Employment Agreement signed by the parties on 1 August 2024 contains a standard set of Australian employment conditions based on the National Employment Standards under the Fair Work Act 2009. There is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent.

3. 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)

1. 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 186 visa.

2. Regulation 5.19(10) requires that 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 made under reg 5.19(11) and in force at the time the application is made. In addition, the occupation must apply to the identified person in accordance with the instrument. In this case, the relevant instrument is LIN 19/049.

3. It is clear from the application and all of the supporting documentation that the tasks of Chef for the applicant will be performed in Australia. A comparison of the position description and the tasks described in ANZSCO for a Chef - 351311 as specified in LIN 19/049 on the Medium and Long-term Strategic Skills list shows that the tasks to be performed correspond to the tasks of the occupation specified in the relevant instrument.

4. The relevant instrument sets out applicable exclusion circumstances that can apply to the occupation Chef which include: the position is involved in mass production in a factory setting; and, the position is in a limited service restaurant. Limited-service restaurant is defined in the instrument. In this case the Tribunal is satisfied that the position related to the occupation is in a full-service restaurant and the applicability circumstances do not apply in this case.

5. Given the above findings, the Tribunal is satisfied that reg 5.19(10) is met. Accordingly, reg 5.19(9)(j) is also met.

CONCLUDING PARAGRAPHS

1. 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

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

George Hallwood
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and

(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.

(2A) Paragraph (2)(aa) does not apply if:

(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

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.