UNIVERSAL TRADE PTY LTD (Migration)

UNIVERSAL TRADE PTY LTD (Migration) [2017] AATA 2920 (18 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  UNIVERSAL TRADE PTY LTD
CASE NUMBER:  1608729
DIBP REFERENCE(S):  BCC2015/3139887
MEMBER:Antoinette Younes
DATE:18 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 18 December 2017 at 3:59pm

CATCHWORDS
Migration –Approval of nominated position (employer nomination) – Nominator – Grocery business – Adverse information – Nominee – Worked in Australia on a visitor visa – Director of the nominating entity – Wrongdoing not acknowledged
LEGISLATION
Migration Act 1958, ss 245AR(1), 359A, 359AA
Migration Regulations 1994, rr 1.03, 1.13A , 1.13A(1)-(3) , 1.13A(5), 1.13B, 2.72 , 2.72(9), 5.19, 5.19(2), 5.19(3), 5.19(4), 5.19(4)(a)-(d), 5.19(4)(d)(i) , 5.19(4)(f) , 5.19(4)(h), 5.19(5), 5.37, Schedule 8 Condition 8101
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 Immigration on 27 May 2016 to refuse the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 27 October 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.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 applicant, Universal Trade Pty Ltd trading as Masinilu Grocery Store lodged the nomination for the position of Chief Executive or Managing Director – ANZSCO 111111. The applicant has stated that it will provide the nominee, Mr Xiaoming ZHONG, with an annual salary of $216,000.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations.
Mr Martin Ma, appeared for the applicant, before the Tribunal on 22 August 2017 and 14 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from witnesses.
Although the matter was initially constituted to a different Member who had conducted the hearing on 22 August 2017, due to extended leave, the matter was re-constituted. On 14 November 2017, the Tribunal gave the applicant an opportunity to make submissions or raise any concerns about the reconstitution and the applicant confirmed that there are no concerns.
The applicant was represented in relation to the review by a registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Section 375A Certificate
In the course of the hearings, the Tribunal advised the nominator of s.375A Certificate being invalid and that essentially it relates to an allegation of an “unpleasant exchange” between a Departmental officer and the former representative. The Tribunal advised that the information is not relevant to its decision relating to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate found that the business was not in a viable financial position to employ the nominee.
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.
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 application for approval was made on the approved form 1395 (Internet), and was accompanied by the fee prescribed in r.5.37. The application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
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)
The nominator, Universal Trade Pty Ltd is in the business of operating a grocery store in Sydney, registered with the Australian Business Register since 2003. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
On the evidence before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and that it directly operates that business.
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.
On the evidence before it, the Tribunal finds that the nominator is not involved in labour hire activities. Accordingly, the requirement in r.5.19(4)(c) does not apply.
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.
This requirement is not limited to adverse information about the ‘business background’ of the employer, an officer or partner. It extends to any ‘adverse information’ known to Immigration about the nominator or a person associated with the nominator.
For the purpose of this provision the terms ‘adverse information’ and ‘associated with’ are defined in r.1.13A and r.1.13B, respectively.[1] Adverse information as defined in r.1.13A includes:
·a finding of guilt by a court, of an offence under a Commonwealth, State or Territory law; or
·a finding, to the satisfaction of a ‘competent authority’,[2] of contravention of a Commonwealth, State or Territory law; or
·being the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or
·being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or
·becoming insolvent within the meaning of s.5(2) and (3) of the Bankruptcy Act 1966 and s.95A of the Corporations Act 2001.[3]
[1] These definitions were previously found in r.2.57(3) and r.2.57(2) and referred to in r.5.19(7). These definitions were repealed and replaced by new definitions in r.1.13A and r.1.13B through SLI 2015 No. 242.
[2] ‘Competent Authority’ is defined as a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened: r.2.57(1) as inserted by SLI 2009 No.115.
[3] r.1.13A(1).
The law which has been contravened, or has possibly been contravened as referred to in the first four dot points above, must relate to one or more of the following: discrimination, immigration, industrial relations, occupational health and safety, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.[4] In addition, the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years.[5] The word ‘includes’ as used in r.1.13A(1) indicates the above list is not exhaustive. Other information which is in some way adverse and relevant to the nominator’s suitability as a nominator could be considered ‘adverse information’ for the purposes of r.2.72(9).
[4] r.1.13A(2).
[5] r.1.13A(3).
Relevantly, a person is ‘associated with’ an applicant:
·if the applicant is a corporation - if the associated person is an officer of the corporation, a related body corporate or an associated entity;
·if the applicant is a partnership - if the associated person is a partner of the partnership;
·if the applicant is an unincorporated association - is a member of the association’s committee of management;
·if the applicant is an entity other than a corporation, partnership or an unincorporated association - if the associated person is an officer of the entity.[6]
[6] r.1.13B(5). The terms ‘officer’, ‘related body corporate’ and ‘entity’ are defined in r.1.13B(5) (previously r.2.57(3). The term ‘officer’, for a corporation or entity (that is not a corporation or individual) has the same meaning in s.9 of the Corporations Act 2001. The term ‘related body corporate’ has the same meaning as in s.50 of the Corporations Act 2001. The term ‘associated entity’ is further defined in r.1.03 as having the same meaning in s.50AAA of Corporations Act 2001.
This is a significant issue that has caused concerns to the Tribunal. During the course of the two hearings, Mr Ma appearing for the applicant gave evidence that was problematic. In the course of the hearings, the Tribunal advised the applicant that there is potentially adverse information before the Tribunal. In accordance with s.359AA, the Tribunal put to the applicant that there is information that the nominee, Mr Xiaoming Zhong has been to Australia on a number of occasions as the holder of subclass 600 visas subject to condition 8101 but it appears that he has been working contrary to condition 8101 which states that the holder must not engage in work in Australia. The Tribunal indicated that this information is relevant because as Mr Zhong is a Director of the nominating entity he is therefore associated as defined in r.1.13B, with the nominator.
In the course of the first hearing, Mr Ma gave evidence that the nominee came to Australia about 4 times in the last 2 years. He stated that the nominee went to Orange and tried to see if corn can be grown. Mr Ma stated that the relevant PAYG summaries for the nominee are for earnings form his work on the farm. Mr Ma stated that he thought that the nominee had work rights. The Tribunal mentioned that there is condition 8101 and Mr Ma was not aware of this condition or that it was attached to the nominee’s visa. Mr Ma essentially confirmed that the nominee had worked in Australia. Mr Ma stated he does not understand visa conditions or migration laws. He however confirmed that the nominee had been reimbursed for the work.
In the course of the second hearing, Mr Ma changed his evidence; he gave evidence that the nominee was working in China for the nominator and has not worked in Australia. The Tribunal put to Mr Ma that this is inconsistent with his earlier evidence that Mr Zhong was working. He said he was nervous in the previous hearing and the questions were not clear. He reiterated that Mr Zhong was not working in Australia. The Tribunal is not persuaded or convinced by Mr Ma’s explanations in relation to the inconsistency in the evidence. This is a significant issue and it is reasonable to expect that Mr Ma would know with certainty whether the nominee had worked in Australia. Although it is plausible that Mr Ma does not have full appreciation of migration law, it is difficult to accept that he would not know whether or not the nominee who has been nominated for a significant position in the company is working in Australia or not. Moreover, the Tribunal is of the view that it is reasonable to suggest that because Mr Ma did not have a full appreciation of migration law and specifically condition 8101, he stated that the applicant was working. The Tribunal found Mr Ma’s evidence in this regard to be evasive raising concerns for the Tribunal about the accuracy of the evidence Mr Ma was giving.
The Tribunal referred Mr Ma to the report provided by the applicant, titled Springwater Export & Distribution prepared by Mr Zhong, dated November 2016 (AAT Folios 332-342). Specifically, the Tribunal indicated that the Executive Summary of the Report refers to Mr Zhong being currently employed by the nominator and to work undertaken in Australia. The Tribunal asked if there is an employment contract and Mr Ma said he does not know and asked the Tribunal to check with Ms R Luk who was giving evidence. The Tribunal noted that it is difficult to see any other interpretation to “currently employed by Universal Trade Pty Ltd where he currently serves as Managing Director” but that the nominee is working for the nominator. Mr Ma said they are waiting for Mr Zhong to work on the greenhouse project.
Ms Luk gave evidence that she has been the bookeeper and accountant for the applicant since 2005 or 2006. The Tribunal asked Ms Luk about the nominee and she indicated her understanding that he holds a visitor visa. She stated that he has not worked in Australia but he looks for farming equipment in China. She clarified that he does work for the nominee in China but not in Australia. She confirmed that the nominee does not have a contract with the applicant for the work performed in China. The Tribunal referred to the report prepared by Mr Zhong and asked her if she knew whether Mr Zhong was working. She stated that he was paid for his work in China. The Tribunal referred to the PAYG summaries (years ending 2015 and 2016) for Mr Zhong provided by the applicant and Ms Luk stated that they relate to payments at a time when Mr Zhong was not in Australia. Ms Luk explained that Mr Zhong paid tax as a non-resident. The Tribunal asked and Ms Luk confirmed that the nominee and the nominator do not have a contract for the work performed. The PAYG summaries refer to the periods from 1 May 2016 to 30 June 2016 and 1 March 2015 to 30 June 2015. In submissions to the Tribunal, the applicant referred to the PAYG summaries and indicated that during the two months in 2016, Mr Zhong was not in Australia and in relation to the 2015 periods, he was not in Australia in March or April 2015 but he was in Australia from 18 May 2015 to 25 May 2015, and 15 June 2015 to 22 June 2015. The submissions noted that Mr Zhong was in Australia for 16 days for holidays and some of that time was spent travelling. It was noted that he was paid for organising farming machinery imported from China to Australia.
Mr Zhong gave evidence that he last came to Australia for 5 days to visit friends. The Tribunal asked him about his friends, and he could not provide any details. He stated that he came to Australia to “look around”. He said on average, he has come to Australia once or twice a year for about a week, the longest no more than a month. He said he has a lot of friends and he was in Australia for leisure. He stated that he knows that visitor visas had condition 8101 attached to them but he denied having done any work for the applicant in Australia but in China. He said he helped the company purchase farming tools and machinery. The Tribunal asked him to specify the type of machinery and he said it was machinery for growing corn. The Tribunal asked him if nominator has purchased any machinery as a result of his work and he said the company has not. The Tribunal discussed the Springwater Export & Distribution report dated November 2016. The Tribunal referred to the comments describing him as a current serving Managing Director and to him personally visiting locations in Australia, researching the viability of the bottled water market, and concluding that Sydney would be the ideal location for the business. He confirmed that in November 2016, the date of the report, he was in Australia.
The Tribunal has carefully considered the evidence before it and there are inconsistencies. The report titled Springwater Export & Distribution prepared by Mr Zhong, dated November 2016 is strong evidence that Mr Zhong had worked in Australia in breach of condition 8101. The report clearly states that he had personally been involved in Australia in various aspects of the project. The Tribunal finds it odd that there is no current employment contract in relation to the nominee’s claimed work in China. When asked about the machinery, he was unable to provide clear and detailed answers about what exactly he was doing for the company in China, raising serious doubts about the claims that the work was done from China. The Tribunal recognises that the applicant has provided the PAYG summaries for Mr Zhong, allegedly lodged for work that he had done in China as a non-resident. It would be very serious for the nominee to lodge a false tax return and the Tribunal recognises this aspect. However, it is acknowledged that during some of the period noted in the PAYG summaries, the nominee was in Australia and therefore the explanation that he could not have worked in Australia during that period is not persuasive.
Work is defined in reg.1.03 to mean an activity that, in Australia, normally attracts remuneration. In consideration of the evidence as a whole and in light of the above concerns, the Tribunal is satisfied that the nominee, Mr Zhong has worked in Australia and he has been paid for that work, in breach of condition 8101. The Tribunal is satisfied that the breach has occurred in the previous three years and that the breach relates to immigration law.
Regulation 2.72(9) refers to adverse information ‘known to Immigration’. The question is whether this information is known to the Department; the delegate’s decision record of 7 April 2017 (AAT file folios 120-129) provided by the applicant relates to an application for a nomination for the same nominee in the same position, lodged on 30 May 2016. Moreover, in submissions to the Tribunal dated 16 October 2017, the applicant draws attention to a Departmental letter of 13 February 2017 advising the applicant of the adverse information (AAT folio783). The information indicates that the Department was aware that the nominee had been working for the nominator and that he had been paid for his work. The Department knew that the nominee has held subclass 600 visas subject to condition 8101 (information put in accordance with s.359AA). Although the delegate did not make findings in relation to condition 8101, that nomination was refused essentially on the basis that since March 2015, the nominee has been able to carry out his duties whilst overseas and therefore it appeared that most of the tasks of the nominated position do not require the nominee to be physically present in Australia. Consequently, the delegate concluded that the majority of the tasks of the nominated position do not require the nominee to be physically in Australia.
Although the Tribunal is not dealing with that nomination, the Tribunal is satisfied that despite refusing the nomination on another ground, it is clear that the Department knew that the applicant was working. Just because the Department took a particular approach does not mean that the Tribunal should follow. The Tribunal has conducted two lengthy hearings and tested the evidence very carefully. On the evidence, the Tribunal is satisfied that the applicant has been working in Australia in breach of condition 8101.
Should the adverse information be disregarded?

The adverse information may be disregarded if it is reasonable to do so. The Explanatory Statement to the regulation introducing this requirement is silent on the intention behind this aspect of the criterion but guidance can be obtained from the identically worded requirement in r.2.72 for temporary work nominations. The Explanatory Statement to the regulations introducing the then r.2.72(1)(i) (now r.2.72(9)) states that it may be ‘reasonable’ to disregard information if, for example, the person had developed practices and procedures to ensure the relevant conduct was not repeated.
Departmental Guidelines (PAM 3) state:
There are no definitive rules as to when it will be reasonable to disregard adverse information about a nominator. Delegates must exercise judgment and assess the circumstances of each case on its merit. Factors that may be taken into account in deciding whether it is reasonable to disregard the adverse information include, but are not limited to:
·     the nature of the adverse information
·     how the adverse information became known, including the credibility of the source of the adverse information
·     in the case of an alleged contravention of a law, whether the allegations have been substantiated or not
·     whether the adverse information relates to a current contravention or one that occurred a long time ago
·     whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur and
·     information about relevant findings made by a competent authority in relation to the adverse information, and the significance the competent authority attached to the adverse information.[7]
[7] PAM3: Migration Regulations - Divisions > Div 5.3 - General > Approval of nominated positions (employer nomination) > 7. Part A - Common criteria > [7.6] No adverse information > [7.6.3] Circumstances in which it may be reasonable to disregard the adverse information (reissued 27/07/17).
The guidelines are not exhaustive and the determination of whether it is reasonable to disregard the information is a question for the relevant decision maker, having regard to all the relevant circumstances of the case.
The Tribunal is concerned that Mr Ma, Ms Luk and Mr Zhong have continued to argue and suggest that although the applicant has done work for the nominator, that work was done in China. The Tribunal is concerned that none of those responsible individuals had acknowledged wrongdoing and this is a matter that the Tribunal takes seriously. Working in Australia without permission is serious and it undermines the integrity of the migration program. These conditions are important and visa holders are expected to comply with those conditions. Non-compliance with condition 8101 could suggest a number of things, including disrespect for immigration and a willingness not to comply with legitimate visa conditions imposed for lawful reasons consistent with law and policy.
The Tribunal has carefully considered the circumstances of this case and the Tribunal is satisfied that it is not reasonable to disregard the adverse information.
In summary, and for the reasons stated, the Tribunal finds that there is adverse information known to the Department about the nominator or a person ‘associated with’ the nominator and that it is not reasonable to disregard that information.
Accordingly the requirements of r.5.19(4)(f) are not met.
Regulation 5.19(4)(d) and r.5.19(4)(h)
Although the Tribunal has made the above finding, the Tribunal need not consider other criteria. However, based on the evidence as a whole, the Tribunal is not satisfied that the nominating entity has the financial capacity to employ a managing director at that salary level.
The applicant provided to the Tribunal submissions and copies of documents relating to finances, training contribution, ASIC details, employment contract and job description of Managing Director, genuine position report, qualifications of nominee, report titled Springwater Export & Distribution prepared by the nominee and dated November 2016, accountants’ verifications, business plan, copies of delegates’ decision records, agreement between Landmark Element Pty Ltd and the applicant, Approval and letter from NSW Department of Primary Industries, letter of fee proposal and DA from Geolyse Pty Ltd to the applicant and Cabonne Council, Certificate of Title, and others. Ms Luk and Mr Deluca gave evidence and the Tribunal has given regard to their evidence.
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 Tribunal has concerns about the evidence in relation to the nominating entity’s financial capacity.
Mr Ma gave evidence that in 2015, he was appointed Director and there are 10 shares of which Mr Ma owns one. Mr Ma is a director and shareholder. He is the accountant for the nominator and has responsibility for business direction.
Mr Ma described the business of the nominator as a mini supermarket. He stated that the annual turnover for 2017 was over $1,000,000. The Financial Statements for 30 June 2017 show total profit of $30,015 and accumulated loses $1,002,224 since the incorporation of the entity in 2003. Mr Ma agreed that since its inception, the Company has been running at a loss. The Tribunal referred to the nominated position of Managing Director and to the nominee having qualifications mainly in IT and asked Mr Ma about the duties of the position. Mr Ma noted that the nominee has special skills. Mr Ma stated that amongst other things, the nominee has expertise in soil and its composition. Mr Ma advised that he is a co-shareholder of Orange Towac and that the relationship between the applicant and Orange Towac is that the two entities have entered into a lease. Orange Towac purchased the land about three years ago and applied for a DA which has been approved. The Tribunal noted that approval of the DA is not directly relevant but referred to Mr DeLuca’s evidence of community benefit. The Tribunal referred to the fact that Orange Towac is not an applicant and the issues relate to the applicant. Mr Ma indicated that there is intention by Orange Towac to supply vegetables to the applicant.
The Tribunal asked how is a company running at such a loss going to fund a position of $221,932. Mr Ma stated that Mr Chu, a shareholder has deposited $1,000,000 to finance the salary. The Tribunal queried the need for a Managing director, Mr Ma stated that they are looking at projections. The Tribunal asked why a mid-level manager paid about $100,000 is not able to perform the tasks. Mr Ma stated that there is a marketing component and it is a specialised role. Mr Ma indicated that the greenhouse has not been built yet but vegetables are growing on the land. The vegetables are owned by Orange Towac and supplied to around 10 customers. Mr Ma referred to the Business Plan and the DA, which has been approved by Council. The Tribunal queried why Orange Towac is not the nominator. Mr Ma indicated that they are focussing on the grocery business and Orange Towac is the supplier. The Greenhouse is owned by Universal Trade Pty Ltd which leases land from Orange Towac. Mr Ma noted that a consultant was hired to handle the DA with the Council.
The Tribunal expressed concerns about the need for the position and indicated that local knowledge would be important. Mr Ma indicated that the nominee has the relevant knowledge and he has connections. Mr Ma indicated that there is not this type of knowledge – hydroponic agriculture in Australia. The Tribunal asked if the nominator had approached the Department of Agriculture about hydroponic farming and the applicant confirmed that it had not and that they want to source the knowledge directly.
Mr Deluca, consultant gave evidence about the negotiations with Council to get DA approval for the greenhouse and the community benefits.
The Tribunal has carefully considered the evidence before it including the business plan and financial documents relating to the nominating entity. The Tribunal does not wish to oversimplify the financials of the nominating entity, however what is clear and undisputed is the fact that since its inception in 2003, the entity has been running at a cumulative loss, which as at 30 June 2017 is $1,002,224 with an operating profit of $30,015. It is difficult to understand why a company running at such a loss would want to fund a position that pays over $200,000. The Tribunal is not persuaded by the explanations that the nominee has special expertise and skills to be the managing director and that it is about business potential. It is important to note that the nominating entity did not even seek assistance or advice from the Department of Agriculture to test local expertise and knowledge. It is difficult to accept why a modest business running at a significant loss would need a managing director in the first place. Moreover, the applicant has consistently argued that the nominee has been working for the applicant, albeit from China. Although the Tribunal has found that the nominee has been working in Australia contrary to his visa condition, the contention that he has done work for the applicant in China undermines the applicant’s contention that the position is required in Australia.
Looking at the evidence as a whole, the Tribunal is not satisfied that the applicant has the financial capacity to fund the position for at least two years, or that there is genuine need for the position.
On the evidence before it, the Tribunal finds that the requirements in r.5.19(4)(d) and r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Antoinette Younes

Senior 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
(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 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)       both 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;
(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 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).

[2017] AATA 2920

18 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice