Vivekta Pty Ltd (Migration)

Vivekta Pty Ltd (Migration) [2021] AATA 1497 (12 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Vivekta Pty Ltd
CASE NUMBER:  1821997
HOME AFFAIRS REFERENCE(S):          BCC2017/4546908
MEMBER:Alan McMurran
DATE:12 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 March 2021 at 4:32pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Technical Sales Representative – genuine need for the nominator to employ a paid employee – position located in regional Australia – actively and lawfully operating a business in Australia – nominee was employed in the nominated position in a full time capacity –no less favourable terms and conditions of employment – no adverse information known to Immigration – decision under review set aside

LEGISLATION
Migration Act 1958, s 359
Migration Regulations 1994, r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia pursuant to r.5.19 of the Migration Regulations 1994 (the Regulations) under the Migration Act 1958 (the Act).
The Application
The applicant applied for approval on 30 November 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 nomination seeks the appointment of a Technical Sales Representative (nec).
Delegate’s decision
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 on the available information, the delegate was not satisfied that the applicant will be employed in the nominated position on a full-time basis for at least 2 years.
The delegate had regard to the 2017 financial statements lodged in support of the application which showed total salaries and wage expenditure for that year of $60,000. This expenditure was shared between 9 employees. As the estimated surplus being profit of $20,966 was described as “marginal”, the delegate was not satisfied that the applicant could or would be able to continue to pay the nominee’s salary of $53,900 per annum for at least 2 years.
The applicant has nominated Ms. Rupalben Shah (“the nominee”), an Indian citizen, for the position of Technical Sales Representative (nec) (ANZSCO 225499) to work in the applicant’s business based in Cairns, Queensland. The nominee’s application for a subclass was refused for want of an approved nomination.
Tribunal process
On 17 December 2020, the matter was constituted to a Member for completion of the review.
On 18 January 2021, the Tribunal sent an invitation for a combined hearing to the applicant and to the nominee.
On 4 March 2021, the applicant appeared before the Tribunal in a combined hearing with the nominee, to give evidence and present arguments. The Tribunal received oral evidence from a director of the applicant, Mr. Vivek Patel (“the director”) and from the nominee. The Tribunal was not informed of any issue arising from the combined hearing process.
The applicant was represented in relation to the review by its registered migration agent who also appeared for the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant carries on business under the name Solar Masters Group (formerly ASM Group) as a supplier of renewable energy and home improvement products. The applicant is a small business operating from its base in Queensland (principally Cairns and Brisbane) in a highly competitive industry. The nominated position is to be filled in the applicant’s Cairns office.
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 for the position of a Technical Sales Representative nec to be approved, all the requirements in the regulation must be met.
The Tribunal has available for consideration the Department’s electronic file[1] , the Department file for the nominee[2] , the Tribunal’s files for the applicant and the nominee, and the oral evidence obtained from the hearing.
[1] BCC 2017/4546908
[2] BCC 2017/4557130
On 20 November 2020, the Tribunal made a request[3] to the applicant for information to update the documents and information already produced.
[3] under section 359 (2) of the Act
On 3 December 2020, and 23 and 26 February 2021, the applicant produced multiple documents updating information including current ASIC extract, Business Activity Statements over a continuous period from October 2018 to September 2020, ATO returns for financial years 2019 and 2020, organisational chart, internal communications from the applicant originating from the nominee, director’s statement made 25 November 2020, details of work projects, labour market testing, employment contract for the nominee and RCB approval.
In these reasons, not every document and verbal discussion from the hearing may be expressly referred to, however, the Tribunal has had regard to all of the information now produced and documents provided, including the more recent [4] written submissions from the director and the representative, and relevant departmental Policy.
[4] 26th February 2021 and 5 March 2021
At the outset of the hearing, the Tribunal explained the process and the purpose of the proceedings. Both witnesses spoke very good English and no interpreter was required. No issues were detected or raised either with the communication during the hearing or verbal exchanges with witnesses. The parties and the representative confirmed they were ready and willing to proceed without any further delays, subject to any further information sought or requests from the Tribunal.
On 5 March 2021, immediately following the hearing, the applicant’s representative provided further information from the applicant and requested by the Tribunal, and which included signed financials and tax returns for the financial year ending June 2020, evidence concerning the related employee Maulin Bharskarbhai Patel (Maulin) and a letter from the accountant dated 5 March 2021[5] explaining a discrepancy with the taxable income shown for the nominee on her tax return assessment in the financial year ending 30 June 2020.
[5] iBooks Accounting (Qld)
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 an identified person as a paid employee to work in the position under their direct control.
The Tribunal has reviewed the Department’s file and finds the application was made on the approved Internet form for post 23 March 2013 applications and the accompanying processing fee paid and accepted on filing by the Department.
The application includes the necessary certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1) and which relates to obtaining a benefit in return for the occurrence of a sponsorship-related event. The Tribunal finds it has no reason not to accept the certification.
Need for the nominator to employ a paid employee to work in the position under their direct control
At the hearing, the Tribunal put questions to the director about the operation the business. The director explained that it is not correct to say that he is not involved in the business, and that he works in the business full-time as his main work activity, and principally from the applicant’s business office in Brisbane. He said he has a master’s degree in electrical engineering, obtained in 2006, and is an Australian citizen.
He answered questions about his background and explained that he had previously (2008) been working as a sales campaign manager for Origin Energy. He said he started the applicant’s business in 2014 under the name “Solar Masters” as part of the Australian Solar Masters (ASM) Group. He said the business now principally operates at Milton (Brisbane), the Gold Coast and Cairns in Queensland. He said the nominee presently runs the applicant’s office in Cairns, where she works alone from leased premises. He said the Cairns office is currently responsible for approximately 70 to 80% of the applicants business.
The director was asked about the management of the business. He explained that he works from an office in Milton and supervises the nominee remotely, although he speaks to her daily, and she regularly travels to Brisbane for meetings. He said there are 2 staff employed on the Gold Coast, including another sales representative (Maulin).
The director was asked questions about the role of the nominee. He said that she does most of the administration and groundwork for the Cairns regional office. He explained that even though she works alone in that office, she is supported (remotely) on a daily basis by himself, and in conjunction with work being done by the other sales representative, Maulin. He said that the nominee accepts “leads” from online references (Google) and from call centres, and from advertising and as referred to her directly. He said she passes this information on to himself as the administration controller and managing director.
He explained that the nominee contacts the customers/referrals directly and arranges a site visit. The site visit is important and used to verify that the customer is suitable for a solar installation, and has the available resources, including power connections on-site. The applicant has a checklist and video with her which she uses on the site visit to record details. This includes taking photographs of roof construction and measurements to verify the load capacity of the roof. The nominee utilises on-site software to create a virtual solar panel installation for the proposed site. On returning to the office, he explained that the nominee then prepares the customer’s presentation, utilising the on-site virtual diagram. This includes technical specifications such as the necessary voltage (measured in amps) for the proposed system and the roof load capacity.
He explained that the nominee’s role is to ensure the accuracy of the presentation and the information to be included sent to the customer, preparatory to verification and acceptance of the solar panel installation proposal. He said the nominee will send the proposal to him for checking, and if required, input expertise from himself and Maulin, who is the more experienced sales representative.
The Tribunal asked about the nominee’s technical skills. The director explained the nominee has undergone specific training, to understand calculations for load limits and the requirements for 2 or 3 phase electrical connections. She has been trained to understand the size of the unit required for installation and the related cost. He explained that the nominee deals with solar installation requests for residential, commercial and farming properties. He said her skill set requires an in-depth knowledge of the product its capabilities and the characteristics of the site where the installation is to be implemented. He explained that on completion of the proposal, all documents are sent to himself as the person with oversight of all projects, and for him to verify that the customer has approved the presentation and signed the necessary documentation, which also has to be sent to the electrical supplier.
He explained that the nominee is the only person “on the ground” in the central regional Queensland location and her position is extremely important. He said that many customers are now referred to them by word-of-mouth following other installations. He said the company is a “small player” and presently has approximately 150 projects for completion. This includes the mix of residential, commercial and rural installations. He said since 2017, when this application was made to the Department, the applicant has completed approximately 400 projects. He said the nominee is involved in all the local field visits and completes quotations and answers customers enquiries and has acquired significant experience on the product.
The director was asked about the engagement of the nominee. He said she was recruited in July 2017, commencing in the Milton office in Brisbane where she underwent 5 days of training in the product and in lead-generation. He said the nominee moved to Cairns full-time in February 2018, where she spent one week training in the field with Maulin, learning the CRM software and the requirements of the electrical supplier (Ergon Energy). According to its website, Ergon Energy builds and maintains the electricity distribution network for regional Queensland.
The director said it is intended that the applicant maintains its present premises in Milton, and the Cairns office subject to a 2+2 commercial lease, last extended in 2020. He said the intention is that the nominee will remain in the Cairns office, utilising the applicant’s installed computer software and hardware (CRW) to complete her tasks and remain “connected” with the administration in Brisbane. He said that it would be extremely difficult to replace the nominee in her role in the Cairns region, particularly now since she has been trained and is very experienced in the solar product. He explained that it is sometimes a difficult concept (solar energy) to communicate to customers and to ensure their understanding of the requirements for installation. He said that the nominee serves as a “bridge” between himself as the overall administrator and the installers (electrical subcontractors and roofers) whom he arranges and organises. He said he has diversified the roles so that the nominee manages the customer specifications and proposals and customer enquiries while he manages the contractors and site installations, with the assistance of the nominee who does site inspections.
The Tribunal has listened carefully to the above evidence and oral submissions from the director. The Tribunal finds that the evidence is credible and practical and demonstrates a substantial need for the applicant to employ a paid employee to work in the nominated position under the applicant’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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Having regard to the evidence at hearing, the current ASIC information and financial documents produced showing the applicant’s current trading activity, the Tribunal is satisfied that the applicant is actively and lawfully operating its business in Australia, in regional central Queensland. The Tribunal is further satisfied on the evidence that it is the applicant which directly operates its solar business, and which is the principal activity.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds there is no evidence before it that the applicant is involved in labour hire activities, or that the applicant is in the business of hiring its staff to other unrelated businesses.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Employment agreement
The Tribunal has had regard to the written employment contract produced and dated 25 October 2017. The contract is said to be effective upon the grant of the visa. The minimum period of employment is said to be for 2 years, noting that the applicant has been continuously employed since first recruited in July 2017. The director explained in his oral evidence that the applicant had completed her initial training in both the field and in the office in Brisbane, before relocating to Cairns where she is to remain.
The director affirmed that he wishes to retain the nominee to work with the applicant, especially as she is now trained and experienced, for as long as possible, not limited to the minimum period of 2 years.
Will the employee/nominee be employed in the nominated position for at least 2 years full-time?
This was the issue the troubled the Department at first instance, due to the lack of adequate financial information provided.
The Tribunal has paid careful regard to the evidence now available and documentation provided. The director explained that his own remuneration is not included as a wage or salary, as he takes a profit share and commission from the net income. He said the current payroll ($116,000) is split between the nominee and the other sales representative, Maulin Patel. He said the nominee’s salary in 2020 as provided for by agreement was $53,900.
The director was asked why, according to the financial information produced, that the nominee had only been paid $44,674. The nominee explained that the applicant had taken one month’s additional maternity leave (unpaid).
On 5 March 2021, following a request from the Tribunal, the applicant’s accountant provided the following explanation in a letter which states:
“iBooks Accounting confirm we attend to the Accounting, Income Tax and associated affairs for Vivekta
Pty Ltd and above-mentioned associated entities.
We confirm that to the best of our knowledge Vivekta Pty Ltd is trading at a profit and can pay all liabilities that it has. On request of Mr Patel, we also confirm the following matters:
1. Gross Wages for Ms Rupalben Shah (“Ms Shah”)
As per the Company’s payroll records, we confirm Ms Shah is on a $53,900 + super, however, it is to be increased to $65,450.
In relation to the discrepancy on her Tax Return year ended 30 June 2020 showing Rupalben’s income to be $44,674 we draw your attention to the following:
We can confirm that Ms Shah was paid a salary of $53,900 + super, however her salary dropped to $49,409 due to unpaid leave that she requested to take when she had her baby. Ms Shah took unpaid leave from December 2019 to January 2020– total of one month.
The difference of $4,491 is the amount of one month salary for above mentioned unpaid leave.
The taxable income shown on Ms Shah’s income tax return for the year ended 30 June 2020 is $44,674. The taxable income is calculated as below:
Gross Wages : $49,409 Gross Interest income : $121.00 Less:
Tax Deductions : $4,856.00 (work expenses claimed)
Taxable Income : $44,674.00
This can be confirmed by following reports that are attached:
a.Ms Shah’s income tax return
b.ATO prefilling report for Ms Shah
c.ATO income statement for Ms Shah which was reported by the Company
d.Payroll Report from the company’s payroll system
Due to Ms Shah is not a permanent Australian Resident yet, she is not entitled to paid parental leave. However, all employees in Australia are entitled to up to 12 months of unpaid parental leave.”

The Tribunal finds it has no reason not to accept that explanation, and there is no reasonable basis for concluding that the applicant is either unable or unwilling to pay the nominee her agreed salary for the agreed minimum period.
The Tribunal also questioned the director as to why the nominee was to be paid a different salary to that of the other sales representative (Maulin). As confirmed in the letter, the nominee’s salary on obtaining a visa will be increased to the equivalent amount of $65,450, plus superannuation.
The director was asked about the payment of sales commissions referred to in the financial information ($554,066). The director said that he pays external sales consultants who provide leads and who are fundamental to originating business for the applicant. He said it is necessary to pay those persons relatively high commissions, while they work independently under their own ABN’s. The accountant’s letter explains that “The sales commission account includes all the payments made to subcontractors that work on ABN in a company and also includes commission paid to Mr Vivek Patel for his earning”.
The Tribunal has considered all this evidence, including the history of employment of the nominee since 2017 and the payment of her salary, and finds it is satisfied that it is reasonable to conclude the nominee will continue to be employed full-time in the position for at least a minimum period of 2 years from the time of the grant of a visa.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has had regard to the terms and conditions of employment of Maulin, an Indian citizen, who was granted a Temporary Skill Shortage (subclass 482) visa on 17 November 2020, and who is also employed in the nominated occupation of Technical Sales Representatives nec. There are no Australian citizens or permanent residents employed in an equivalent position by the applicant.
The applicant relies upon comparable salaries paid for the position as evidenced by advertisements provided in evidence. The Tribunal has also had regard to information on the Payscale Australia website which indicates the median salary for a similar sales representative to the nominee and Maulin, is $60,178.
Having regard to the written employment contract provided and the related salary information for the occupation, the Tribunal finds on that evidence it is satisfied that the terms and conditions applicable to the nominated position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal finds there is no evidence before it of any adverse information within the meaning of the definition in the regulations known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal asked questions of the witnesses at the hearing concerning workplace compliance issues. The Tribunal finds it is satisfied there is no evidence before it of any failure by the applicant to comply with workplace relations laws or any unsatisfactory record in that regard in the locations in which it operates a business and employs staff.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI16/059), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
In this instance, the second of the above alternatives applies.
Location in regional Australia
The Tribunal finds the occupation is to be performed in the applicant’s business at Cairns, in North Queensland. The Tribunal is satisfied the position and nominator’s business is located in regional Australia and that the position and the nominator’s business is located according to the relevant instrument for postcodes identifying regional areas within Australia.
Genuine need to employ the nominee in the role?
The Tribunal has set out above the evidence from the director and the applicant concerning the role of the nominee and the need to employ the nominee as a technical sales representative in the applicant’s business.
The Tribunal refers to that evidence, and finds it has no reason not to accept that the applicant has provided the evidence necessary to satisfy the Tribunal that the position is genuine, and that the nominee will be employed in the role identified.
The Tribunal finds the director’s evidence and that of the nominee in support, and confirming her role, was both credible and contextual, given the circumstances of the applicant’s business and its current operation. The Tribunal is satisfied that evidence establishes the need for the applicant to employ the nominee in the role, and that the established need is genuine and within the intent and meaning of the regulations.
Can the position be filled by an Australian citizen or permanent resident living in the same local area?
The applicant produced evidence for the hearing and documents establishing the advertising attempts made by the applicant to recruit an employee. The labour market testing attempts made by the applicant are summarised in those documents showing online advertising in the period 5 September 2017 to 5 October 2017 and payment of the relevant advertising online fee. According to the information, there were 105 “visits” to the advertisement and in respect of which 2 applications were received. In a similar period from 1 September 2017 to 5 September 2017, a similar online advertisement received 2 applications in response.
The director has provided evidence that the responses were from applicants who did not hold the relevant qualifications or knowledge or experience to fill the role and meet the technical requirements for a salesperson in the applicant’s industry.
The Tribunal finds it is satisfied on the evidence that despite the applicant’s attempts, it was unable to fill the position with an Australian citizen or permanent resident living in the same local area (Cairns).
Do the tasks for the position align with those specified in the relevant instrument?
The ANZSCO guide[6] for the position provides a description for the role as a person who will “represent companies in selling a range of industrial, medical and pharmaceutical goods and services to industrial, business, professional and other establishments”.
[6] Unit group 2254
The guide describes tasks for the position as:
·compiling lists of prospective client businesses using directories and other sources
·acquiring and updating knowledge of employers' and competitors' goods and services, and market conditions
·visiting regular and prospective client businesses to establish and act on selling opportunities
·assessing customers' needs and recommending and explaining goods and services to them
·monitoring customers' changing needs and competitor activity, and reporting these developments to sales management
·quoting and negotiating prices and credit terms, and completing contracts and recording orders
·arranging delivery of goods, installation of equipment and the provision of services
·reporting to sales management on sales made and the marketability of goods and services
·following up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising
·preparing sales reports and maintaining and submitting records of business expenses incurred
The Tribunal discussed the role with the nominee. The nominee gave clear answers to questions about her work role, describing most of the tasks as set out above as being within her daily and weekly schedule. Quite independently, the director gave his evidence which was in summary a corroboration of the description provided by the nominee herself.
Considering the context of the business and the role played by the nominee, the fact the evidence was given candidly and credibly by both witnesses, the Tribunal finds it is satisfied that the nominee will be performing the majority of the tasks as proposed in the guide for the role and occupation nominated. It seemed to the Tribunal when listening to the evidence, that the nominee’s role is quite discrete from that of the director himself who oversees the contract work, whereas the nominee is principally responsible for visiting and communicating directly with customers and following up, as well as preparing sales reports and submitting business records for the director to examine.
For these reasons, the Tribunal is satisfied the tasks of the nominee’s position align with those identified as being those associated with the role and the occupation.
Has the position been considered by the relevant regional certifying body?[7]
[7] r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).
The Tribunal finds that the documentation provided includes a certificate from the Regional Certifying Body[8] and dated 17 November 2017, which confirms it has considered that there is a need for a paid employee in the nominated position which cannot be filled by an Australian citizen or permanent resident living in the same local area (Cairns).
[8] Chamber of Commerce and Industry Queensland
Although the certificate is not conclusive in itself as to its recommendations, it is part of the regulatory requirements that the application has been considered by the local regional industry authority. The applicant has met that requirement.
Summary
Having regard to all of the information and documentation provided and the oral evidence at hearing, the Tribunal finds that the requirements of r.5.19(4)(h) are now met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alan McMurran
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 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).

[2021] AATA 1497

12 March 2021

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Immigration

Administrative Law

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Statutory Construction

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