Monkey Boy (QLD) Pty Ltd (Migration) [2023] AATA 3898 (19 July 2023)

Last Updated: 28 November 2023

Monkey Boy (QLD) Pty Ltd (Migration) [2023] AATA 3898 (19 July 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Monkey Boy (QLD) Pty Ltd

REPRESENTATIVE: Ms Ying Li (MARN: 1575480)

CASE NUMBER: 1925756

HOME AFFAIRS REFERENCE(S): BCC2018/820352

MEMBER: Terrence Baxter

DATE: 19 July 2023

PLACE OF DECISION: Brisbane

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

Statement made on 19 July 2023 at 8:45am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Dental Technician – identification of need – administrative process – genuine need – busy practice – replace departed employee – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
2. The applicant, Monkey Boy (QLD) Pty Ltd, applied for approval on 20 February 2018. The applicant nominated Mr Chun-Yuan Lin (the nominee) in the position of Dental Technician. The applicant operates a denture clinic under the business name West Street Denture Clinic at 90 West Street, Toowoomba, Queensland. The applicant has employed the nominee as a Dental Technician since January 2018.
3. 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).
4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate found that the application did not identify a need for the applicant to employ the nominee as a paid employee to work in the position under the applicant’s direct control.
6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 13 September 2019.
7. Mrs Christine Topalov, the Financial Manager of the applicant, appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Peter Topalov, the sole director and shareholder of the applicant, and from the nominee.
8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
9. The applicant was represented in relation to the review by its registered migration agent, Mr Michael Keegan, until 24 May 2023, and by its registered migration agent, Ms Ying Li, from that date. Ms Li attended the Tribunal hearing.
10. 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

11. 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.

Evidence presented prior to the hearing

12. The applicant produced to the Department of Home Affairs (the Department) the following documents:
    1. A job advertisement for the position accompanied by a recruitment report and resumes of unsuccessful job applicants.
    2. Correspondence, a Form 1404 and an Assessment Statement from the Regional Certifying Body (RCB), the Chamber of Commerce & Industry Queensland, Toowoomba, dated 19 February 2018.
    3. Profit and loss statements for the 2017 and part of the 2018 financial years.
    4. A submission from the applicant regarding prior employment of the nominee.
    5. An ABN Lookup report in respect of the applicant’s ABN.
    6. A business activity statement for the period from July 2017 to September 2017.
    7. ASIC evidence in respect of the applicant and its business name, West Street Denture Clinic.
    8. An employment agreement dated 29 January 2018.
    9. An organisational chart.
    10. Evidence of the applicant’s tenancy of its business premises.
13. The applicant produced to the Tribunal the following documents in addition to documents provided to the Department:
    1. A copy of the delegate’s decision.
    2. Submissions from the former representative dated 16 November 2022 and 19 May 2023.
    3. Current ASIC evidence in respect of the applicant and its business name.
    4. Business activity statements for the period from July 2020 to March 2023.
    5. Financial statements and tax returns for the 2021 and 2022 financial years.
    6. A current organisational chart and a position description.
    7. Photographs of the nominee performing tasks of the position.
    8. An Australian and New Zealand Standard Classification of Occupations (ANZSCO) classification for the occupation of Dental Technician.
    9. An employment agreement dated 4 July 2022.
    10. A further job advertisement for the position and a further recruitment report with resumes of unsuccessful job applicants.
    11. A submission from the applicant dated 1 September 2019 regarding the delegate’s decision.
    12. PAYG payment summaries and income statements of the nominee for the 2017 to 2022 financial years.
    13. Various payslips of the nominee.
    14. An ATO transaction statement of the applicant for the period from 17 May 2021 to 17 May 2023.
    15. A job application from the nominee to the applicant dated 29 November 2017 and the nominee’s resume.
    16. Evidence of the nominee’s qualifications as a Dental Technician.
    17. An employment reference from a former employer of the nominee.
    18. Bank statements of the applicant.
    19. A submission from the current representative dated 26 May 2023.
    20. Tax returns of a former employee of the applicant for the 2017 and 2018 financial years.

Evidence presented at the hearing regarding the applicant’s operations

14. Mr Topalov commenced practice as a Dental Technician in early 2003 and the applicant was registered in 2004. Mr Topalov now practices as a Dental Prosthetist and works in the practice with the assistance of two Dental Technicians, including the nominee. The applicant’s business is that of a denture clinic, in which Mr Topalov usually meets with patients to identify their needs. The applicant then manufactures and supplies dentures and other dental appliances including plates, mouthguards and splints.
15. The applicant operates a laboratory, in which the nominee performs duties including the construction and repair of acrylic denture work, and the second Dental Technician performs chrome metalwork. The applicant’s business is expanding, and Mr and Mrs Topalov are negotiating to acquire an additional property as a second laboratory.
16. The applicant employed the nominee as a Dental Technician on a part-time basis in January 2018 and the nominee’s employment has been full-time since early March 2018. Prior to the nominee’s employment in January 2018, he had been employed by the applicant on a casual basis.

Evidence presented after the hearing

17. After the hearing, the applicant produced to the Tribunal the following documents:
    1. An amended employment agreement dated 31 May 2023.
    2. Recent payslips of the nominee and of an equivalent worker.
    3. Market salary evidence from the platform Seek.

The application is compliant: reg 5.19(4)(a)

18. 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) of the Migration Act 1958 (Cth) (the Act). 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.
19. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
20. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.^[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.^[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
21. The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Dental Technician. On page 5 of the application, the nominee is identified as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ an identified person as a paid employee in the position of Dental Technician under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. Although this was the ground relied on by the delegate to refuse the nomination application, the Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
22. As regs 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

23. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
24. The applicant has provided evidence from ASIC that it is registered and that its trading name, West Street Denture Clinic, is also registered. The applicant has provided financial statements and taxation returns up to the 2022 financial year and business activity statements to the month of March 2023. The business activity statements establish that the applicant’s ABN is active, and that the applicant is registered for GST.
25. The applicant’s financial statements reveal that it recorded sales in the 2021 and 2022 financial years of $1,045,056 and $1,089,965 respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely a denture clinic.
26. Accordingly, the requirement in reg 5.19(4)(b) is met.

Position is not labour hire: reg 5.19(4)(c)

27. 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.
28. Mr Topalov gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
29. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

30. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
31. The amended employment agreement provides that the position is full-time and for a minimum of two years from the grant of the nominee’s permanent residency visa, with no exclusion of the possibility of extension. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
32. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The salary payable to the nominee under the employment contract is $76,960 per annum plus superannuation.
33. The applicant’s business is profitable. It has recorded profits (before tax) of $177,972 and $179,333 in the 2021 and 2022 financial years respectively. According to its 2022 balance sheet, the applicant had net assets of $621,872 at the end of that financial year. The applicant has employed the nominee on a full-time basis since 2018 and has paid him salaries of $65,062 and $65,172 in the 2021 and 2022 financial years respectively.
34. The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Dental Technician in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
35. Accordingly, the requirement in reg 5.19(4)(d) is met.

No less favourable terms and conditions of employment: reg 5.19(4)(e)

36. 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.
37. The salary payable to the nominee under the current employment agreement is $76,960 per annum. The agreement provides that, unless more generous provisions are included in the agreement, the terms and conditions of the nominee’s employment will be those set out in the Health Professionals and Support Services Award 2010 and applicable legislation including the National Employment Standards. The applicant is to make contributions on behalf of the nominee equivalent to the superannuation guarantee obligations provided for in the relevant legislation.
38. The applicant has an Australian citizen employed as a Dental Technician in the practice. The applicant has provided current payslips to establish that the salary being paid to the nominee is identical to the salary paid to the Australian worker. The applicant has also produced evidence from the platform Seek that the salary range for Dental Technicians in Queensland ranges between $60,000 and $80,000 per annum.
39. The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by the Queensland Chamber of Commerce and Industry, Toowoomba, dated 19 February 2018, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).
40. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
41. Accordingly, the requirements of reg 5.19(4)(e) are met.

No adverse information known to Immigration: reg 5.19(4)(f)

42. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
43. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
44. Accordingly, the requirements of reg 5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

45. 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.
46. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
47. 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)

48. 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 legislative instrument, 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and a regional certifying body has advised the Minister about certain matters relating to the position.
49. The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4350 (Toowoomba, Queensland). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 90 West Street, Toowoomba, Queensland 4350. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.

Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia

50. As recorded in the preceding paragraph, the Tribunal finds that the position is located at 90 West Street, Toowoomba, Queensland 4350. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.

Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control

51. Based on the information provided to the Department, the delegate was not satisfied that the related requirement under reg 5.19(4)(a)(ii) had been met. The Tribunal notes that no evidence was provided to the Department that the nominated position was to fill a position that had become vacant because a previously employed Dental Technician had left the full-time position to seek other employment. Mrs Topalov has provided a comprehensive submission taking issue with various aspects of the delegate’s decision.
52. Mr Topalov stated at the hearing that there was a genuine need to employ the nominee because the applicant’s practice is now very busy and requires his services as a Dental Prosthetist and the services of two Dental Technicians. He said that, when the business was first established, he had personally performed the work now performed by the nominee, but that the majority of his time was now taken up in consultations with clients. The applicant relies on the two Dental Technicians to carry out the acrylic and chrome work required in the construction and repair of dental appliances.
53. Mr Topalov said that the applicant was forced to fill this position early in 2018 to replace a Dental Technician who had previously been employed by the applicant, Mr Zhen Huang. Mrs Topalov stated in her submission to the Tribunal that Mr Huang had resigned after upgrading his own qualifications to Dental Prosthetist and had sought alternative employment in that higher-paid role.
54. The Tribunal notes that the nominee has been employed in the position of Dental Technician on a part-time basis since January 2018 and on a full-time basis since early March 2018. The Tribunal has also had regard to the certificate of the RCB referred to in paragraph 39 above.
55. The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Dental Technician at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.

Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area

56. The position was advertised on the sites Seek and Adzuna in November and December 2017. Recruitment reports have been provided by both Mr Topalov and Mrs Topalov. There were nine applications to fill the position, including an application from the nominee. Three applicants either withdrew their applications or did not attend an interview for the position. One applicant attended an interview and was offered the position but withdrew his application to accept another job offer. Three job applicants were not Australian citizens, and one applicant did not possess the required qualifications for the position. The nominee applied for the position and was appointed.
57. The Tribunal also places weight on the certificate of the RCB referred to in paragraph 39 above. Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.

Regulations 5.19(4)(h)(ii)(D) and (DA) – 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 and the occupation is applicable to the proposed employee in accordance with the specification of the occupation

58. The occupation proposed by the applicant is Dental Technician, which has the six‑digit ANZSCO code 411213 and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in the ANZSCO for that occupation include constructing and repairing dentures and other dental appliances.
59. The nominee’s main duties and responsibilities according to the position description are as follows:
    • Construct and repair dentures and other dental appliances
    • Coordinate and carry out all dental technician duties including pour up models, set teeth, wax up, invest and process, finish dentures, bending wires for RPD's, surgical guides, special trays, mouthguards, splints, repairs, relines, additions and more
    • Order materials and stock
    • Prioritise work so jobs are completed on time, communicate any difficulties with deadlines to Peter
    • Maintain a clean and safe workspace, and abide by workplace health and safety policies and procedures
    • Other tasks as directed
    • Maintaining clinic and laboratory to a hygienic, clean and tidy standard
    • Following sterilization and infection control procedures
    • Working as a team with other staff members.
60. Mr Topalov gave detailed evidence at the hearing regarding the tasks performed by the nominee. The position of Dental Technician requires a considerable degree of skill, and the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks specified by the Minister in the relevant instrument. According to the ANZSCO, the occupation is a Skill Level 2 occupation, requiring that the nominee holds an AQF Associate Degree, Advanced Diploma or Diploma. Evidence has been provided to the Tribunal that the nominee holds a Diploma of Dental Technology. The Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.

Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position

61. As set out in paragraph 49 above, the Tribunal is satisfied that the business operated by the applicant is located at 90 West Street, Toowoomba, Queensland 4350, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.

Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)

62. The certificate referred to in paragraph 39 above was submitted to the Department. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
63. Accordingly, the requirements of reg 5.19(4)(h) are met.
64. 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

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

Terrence Baxter
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval of nominated positions (employer nomination)

...

(2) The application must:

(a) be made in accordance with approved form 1395...; and

(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

(b) be accompanied by the fee mentioned in regulation 5.37.

...

Direct Entry nomination

(4) The Minister must, in writing, approve a nomination if:

(a) the application for approval:

(i) is made in accordance with subregulation (2); and

(ii) identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and

(b) the nominator:

(i) is actively and lawfully operating a business in Australia; and

(ii) directly operates the business; and

(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

(d) both of the following apply:

(i) the employee will be employed on a full-time basis in the position for at least 2 years;

(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f) either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(g) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

(h) either:

(i) all of the following apply:

(A) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

(AA) there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

(AAA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

(B) either:

(I) the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

(II) the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

(ii) all of the following apply:

(A) the position is located in regional Australia;

(B) there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

(D) the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

(DA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

(E) the business operated by the nominator is located at that place;

(F) a body that is:

(I) specified by the Minister in an instrument in writing for this sub-subparagraph; and

(II) located in the same State or Territory as the location of the position;

has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

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^[1] Dictionary.com (accessed June 2023).
^[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.