Wellbeing Korea Qld Pty Ltd (Migration) - [2024] AATA 2520

Wellbeing Korea Qld Pty Ltd (Migration) [2024] AATA 2520 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Wellbeing Korea Qld Pty Ltd
REPRESENTATIVE:  Mr Chang Min Park
CASE NUMBER:  2308501
HOME AFFAIRS REFERENCE(S):          BCC2017/956047
MEMBER:Bridget Cullen
DATE:21 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 March 2024 at 3.57pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Federal Circuit and Family Court remittal – Direct Entry nomination stream – Retail Manager (General) – genuine need for the position – retail sale of Asian groceries and food products – tasks of the position – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 17 December 2018 to reject the Applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The Applicant applied for approval on 10 March 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the Applicant, Wellbeing Korea Pty Ltd (ABN 20 151 420 807), has applied for approval of a nomination for the position of Retail Manager (General) (ANZSCO 142111), seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the delegate found that the Applicant had provided insufficient evidence to support the nomination satisfying reg 5.19(4)(a)(ii). The Applicant reviewed the decision to not approve the nomination in the Tribunal (differently constituted) and the Tribunal affirmed the Department’s decision on 26 November 2021. On 29 May 2023, the matter was remitted to the Tribunal by the Federal Circuit and Family Court of Australia (Division 2).
The Applicant appeared before the Tribunal on 18 March 2024 via Director and Secretary, Mr Uncheol Kim, to give evidence and present arguments. The Tribunal also received oral evidence from the Nominee, Ms Yuri Na. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The Applicant was represented in relation to the review. Mr Chang Min Park attended the hearing and made submissions on the Applicant’s behalf. The hearing was conducted remotely, via Microsoft Teams videolink, as the Applicant and Nominee are located in Cairns.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Helpfully, the representative has provided the Tribunal with comprehensive written submissions outlining the Applicant’s business:
THE APPLICANT’S BUSINESS PROFILE
4. The applicant, Wellbeing Korea QLD Pty Ltd (hereinafter referred to as "Wellbeing Korea"), commenced operations in 2011 as a pioneer in providing Asian grocery solutions in Cairns. Initially, the approach to business was routine, but with the increase in international tourism and corresponding rise in competition, there emerged a need for strategic market positioning and expansion.
5. Wellbeing Korea's primary focus is on the retail sale of Asian groceries and food products. Beyond this, the company has expanded services to include additional offerings such as organising group purchasing orders, international courier services, and the introduction and resale of tour guide packages. These services have established Wellbeing Korea as a central hub for the Asian community and local residents in Cairns.
6. With the advent of new competing entities, Wellbeing Korea has been ambitious in maintaining market leadership. Efforts include expanding the product range, competitive pricing, and considering establishing satellite offices in nearby cities. However, these ventures came with unforeseen complexities, especially highlighted by the resignation of a key retail manager and the arrival of new competitors such as Joa Mart Townsville, Seoul Mart Townsville, and others in around 2020, 2021 and 2022.
7. For the Asian minority demographic in a region of Australia with a relatively small community, Wellbeing Korea is more than a grocery store; it is a necessity. It provides essential goods that are otherwise unavailable at mainstream retailers, earning strong value and appreciation within both the Asian community and the broader Cairns citizens. This has cemented Wellbeing Korea as the premier destination for locals and tourists alike.
8. Wellbeing Korea has demonstrated through its sales over the past five years that it is far from being a modestly sized corner store. The company operates a significant retail space of 240 square metres, along with a parking facility covering 80 square metres, totalling 320 square metres in use. (The shop plan is enclosed) Its facilities are substantial, including refrigeration rooms, freezers, seven display refrigerators, and thirteen display freezers, underscoring the scale of its operational infrastructure. The monthly electricity costs alone for the refrigeration and freezing facilities range between $3500 and $4000, highlighting substantial operational expenses. Moreover, the value of its inventory is approximately $200,000, as covered under the facility's insurance policy, further evidencing the scale of the business's assets.
9. Financial performance over recent years solidifies Wellbeing Korea's positioning further away from a small-scale operation. The reported revenue figures present a clear trajectory of growth, particularly noting an increase from the 2020-2021 to the 2021-2022 financial year, moving from $854,757.84 to over a million dollars at $1,010,439.51. The applicant submits that despite high competition in the region, this performance is claimed to be highly notable.
10. Given the extensive facility use, high operational costs, substantial insurance-covered inventory value, and increasing revenue, it is evident that Wellbeing Korea operates on a scale that necessitates the position of a Retail Manager. The diversity in inventory management and significant interactions with suppliers and transportation channels further underscore the complexity and size of the operation, substantiating the proposition that the business is not small and indeed requires a Retail Manager for its efficient and effective management.
11. Over 10 years, Wellbeing Korea has undergone substantial changes to meet the dynamic shifts in the retail landscape. Adaptations include embracing online ordering systems, delivery services, customer group purchase initiatives, and building a robust social network presence. The onset of the COVID-19 pandemic, and its impact on international tourism, has accelerated the need for ingenuity and resilience in business operations.
The application is compliant: reg 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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The Applicant completed the relevant Certification Form – Paying for visa sponsorship, to the effect that the Applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
The Applicant has provided evidence outlining the need for the business to employ a paid employee to work in the position of Retail Manager (General) under the nominator’s direct control. Mr Kim has worked in the business quite extensively in the past, along with his wife and Co-Director, Bokyung Park, to build strong community connections in the Cairns area where the grocery store operates. However, for personal reasons including his own health needs, Mr Kim and Mrs Park have relocated to Brisbane and are no longer able to work day-to-day in the business. Understandably, they also wish to transition the business to a position where, as they age and look to retire, they can take on a more strategic oversight role. Hence, the business needs a Retail Manager (General) to ensure that day-to-day operations are effective.
The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the Applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the Applicant’s Financial Statements for the financial years ending 30 June 2021 and 30 June 2022, BAS Statements from 1 July 2022 to December 2023, together with earlier financial statements, and an ASIC Company Extract, the Tribunal is satisfied that the Applicant is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: reg 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 is satisfied that the employment contract for Ms Yuri Na dated 14 January 2024, organisational chart, and evidence from both Ms Na and Mr Kim about the nature of the position, confirm that the Nominee will work in the Applicant’s direct employ.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the Nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Applicant has owned and operated a Korean grocery market in Cairns since 2011. The Tribunal has been provided with a copy of the Nominee’s employment contract dated 18 February 2022 which provides for an annual base salary of $63,000. Together with superannuation at the rate of 11.5%, the total remuneration package (excluding bonuses) is $72,245.00. The term of the contract is for 4-years with no express exclusion on the possibility of an extension beyond the completion of the 4-year period.
Financial statements for the business have been provided for the financial years ending 30 June 2021 and 30 June 2022. The business operates profitably with an increase in profit between the last two financial years.
The Tribunal is satisfied there is no reason why the Applicant would not be able to support the Nominee’s employment for at least two years. Ms Na gave evidence to the Tribunal, confirmed by the evidence of Mr Kim, that she commenced in the role in July of 2019. She had to stop working when she lost working rights between February of 2022 and November of 2023, when the matter was remitted to the Tribunal.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
A review of the Applicant’s 2024 organisation chart demonstrates there are no other Australian citizens or permanent residents performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied having had regard to comparable salaries that the salary amount and the terms and conditions paid to the Nominee are no less favourable than those that would be provided to an Australian citizen or permanent resident performing the same work in the same place in Cairns, Queensland.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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.
There is no evidence before the Tribunal that indicates the Applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 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 in the relevant Instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(6) provides that ‘regional Australia’ is defined by the legislative instrument.
In this case the position is located in Cairns, QLD 4870. At the time of the application the location is considered regional Australia as per Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(5)(h)(ii)(A) and (E) are met.
Genuine need for the paid position which cannot be filled by an Australian citizen or an Australian permanent resident.
Subparagraph 5.19(4)(h)(ii)(B) requires the Tribunal to be satisfied that there is a genuine need for the Applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the evidence provided to the Tribunal regarding the nature and size of the business and the explanation as to why the nominator requires the services of the Nominee as a Retail Manager (General). The Applicant providing the following submissions in relation to genuine need for the position:
Wellbeing Korea’s Retail Manager is expected to undertake strategic planning, comprehensive risk management, oversee adherence to the business-related regulations such as the state authority’s liquor licence, and manage complex customer relationships due to the evolving needs of its customer base. These duties align directly with ANZSCO's description of a Retail Manager, demanding both strategic vision and operational expertise which substantially exceed the responsibilities of a supervisor role.
The ability of the Retail Manager to adapt to changing circumstances, implement digital technologies, and proactively address customer needs underscores the integral value of this role.
The role of a Retail Manager at Wellbeing Korea extends into multiple dimensions of the business that require a strategic, forward-thinking, and holistic approach to meet advanced challenges. This includes the implementation of new technologies for marketing through the social network medias and customer engagement, strategic marketing in response to intensified competition, and effective business proposals to the Directors in a complex retail operation. The nominee, Ms Na, has demonstrated her proficiency in these areas, affirming that her role is aligned with the strategic sphere of influence expected of a Retail Manager.
Both Mr Kim and Ms Na provided extensive evidence at the hearing about the role, and Ms Na’s tasks in the role. The Tribunal found both Mr Kim and Ms Na to be helpful and straightforward in answering questions about the business. The Applicant’s representative has summarised Ms Na’s duties in written submissions, filed in the Tribunal in advance of the hearing:
THE NOMINEE’S WORK DUTIES IN THE BUSINESS AND CONTRIBUTION
Wellbeing Korea confirms that its Nominee, Ms Yuri Na, has demonstrated the capacity to fulfill the challenging tasks of the Retail Manager role. In addition to her accomplished track record as a restaurant staff leader and manager, she shows the ability to adapt to shifting environments, manages highly complex tasks, and contributes significantly to the strategic direction of The Company.
Ms Na's dedication to the Company and willingness to relocate despite uncertainties demonstrate both personal commitment and resilience which are valuable attributes given the diverse demands of the Retail Manager position.
Determination of product mix, stock level and service standards
Sensitive to the rapidly changing interests of local as well as immigrant and tourist clientele in Asian products, Ms Na devotes considerable effort toward scouting new products. She has been successful in executing significant tasks such as sourcing and purchasing popular products sold in major cities such as Sydney and Brisbane at cost-effective prices. delegate in their decision refused the nomination application under r 5.19(4)(a)(ii) stating that the application for approval and supporting documents did not identify a need for the nominator to employ a paid employee to work in the position of a Café or Restaurant Manager under their direct control.
Improving upon the rudimentary stock management system of the past, she has successfully renovated the system. Her focus on reducing excess stock through timely promotions and other marketing tactics ensures products are cleared efficiently.
Building on the traditional focus on merely stocking products, Ms Na has made significant strides in enhancing customer service. She emphasises introducing new product usage and cooking methods to local customers, which effectively stimulates product purchases. She also recommends bundling multiple products for increased purchase volume, thereby elevating the average sales per customer.
Retail Operations and Strategic Development
Ms Na's role encompasses the adoption and implementation of significant online marketing strategies to cater to a wider market segment, including international consumers, which requires a comprehensive understanding of digital platforms and analytics. Such skills fall squarely within the strategic operational remit of a Retail Manager.
Ms Na actively capitalises on group purchasing systems to directly source products that are either in demand within the community or have gained popularity for their appeal. This proactive approach not only ensures that the store's inventory is aligned with customer interests but also fosters a strong connection with the community's preferences.
The process of sourcing and introducing these popular products serves as an incentive for customers to visit the store. This traffic not only increases the store's footfall but also creates opportunities for additional sales through exposure to related products, effectively utilising the store’s physical space and inventory for maximised sales opportunities.
As submitted above, the competitions in Cairns’s area have been heated recently and the market expectations are exceeding the decades-ago operations of Wellbeing Korea. Thus, the applicant submits that a strategic development of the business operation is not an option but a must, where the position of a Retail Manager plays a significant role.
Human Resources and Staff Management
Ms Na has successfully developed and overseen staff training procedures that increase customer service levels and internal efficiency in spite of the fact that Wellbeing Korea utilises a limited number of employees. She works to ensure the maintenance of the service standards.
Due to the business’s basic nature, Wellbeing Korea involves direct sales to the customers and relatively long business hours. This has caused pragmatic issues that the cashier had to be attended during the operating hours. However, by way of Ms Na’s involvement in data analysis and customer patterns, namely less than daily 100 transactions mainly distributed lunch time and 6-8pm period, the newly adapted system does focus on the busy hours and the integration with a part-time cashier and education of basic cashier duties to other employees including the directors.
Financial Management and Budgeting
The nominee’s duties include not just supervision of sales, but the management of the overall financial health of the business, including detailed budgeting, forecasting, and managing operational costs, which are essential functionalities of a Retail Manager.
Regulatory Compliance and Risk Management
The nominee recently was appointed as Wellbeing Korea’s approved liquor manager. Although the sales of Asian liquors do not contribute huge portion of its sales, it plays a heavy role to attract on-premises customers and by way of the nominee’s selection of associated retail items to come along with those liquor products, the sales pattern assists solid customer satisfactions. For the maintenance of the relevant liquor licence, Wellbeing Korea must guarantee that an approved liquor manager is available, and the nominee is appointed accordingly.

The oral evidence of Ms Na and Mr Kim is supported by documentary evidence, consisting of marketing plans and strategies developed for the business.
In carefully considering the documents and submissions provided by the Applicant in support of the application, the Tribunal is also mindful that the Nominee has worked in the business when she has had working rights, since 2019 – a period now spanning 5-years.
As noted above, the business is profitable and has been operating for a considerable period of time.
The Tribunal takes into account the opinion of the Regional Certifying Body, Chamber of Commerce and Industry Queensland, dated 7 March 2017 advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
Evidence of ads placed in local regional newspapers, as well as a summary of the Applicant’s recruitment efforts, was provided to the Department together with the application.
The Tribunal is satisfied that the Applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident.
Accordingly, r 5.19(4)(h)(ii)(B) and (C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument. The applicable instrument specified for this purpose is IMMI 15/083. Retail Manager (General) (ANZSCO 142111) is listed in Schedule 1 as a specified occupation of that instrument.
The ANZSCO provides as follows:
1421 Retail Managers
RETAIL MANAGERS organise and control the operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
odetermining product mix, stock levels and service standards
oformulating and implementing purchasing and marketing policies, and setting prices
opromoting and advertising the establishment's goods and services
oselling goods and services to customers and advising them on product use
omaintaining records of stock levels and financial transactions
oundertaking budgeting for the establishment
ocontrolling selection, training and supervision of staff
oensuring compliance with occupational health and safety regulations

Occupations:
142111 Retail Manager (General)
142112 Antique Dealer
142113 Betting Agency Manager
142114 Hair or Beauty Salon Manager
142115 Post Office Manager
142116 Travel Agency Manager
The Tribunal has had regard to the evidence provided including the job description and the size and nature of the business and is satisfied that the tasks and responsibilities of the Nominee largely correspond with those in the relevant instrument and therefore Regulation 5.19(4)(h)(ii)(D) is met.
Regional Certification
The Tribunal has considered the Forms 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice issued on 7 March 2017.
On the basis of the advice set out in the Form 1404 the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(i)(B) and (C) of the Regulations. The regional certifying body states that:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Forms 1404 together with the other evidence provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Bridget Cullen
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
(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)       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).