A and E Contractors Pty Ltd (Migration)

A and E Contractors Pty Ltd (Migration) [2021] AATA 3614 (17 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  A and E Contractors Pty Ltd
CASE NUMBER:  1818198
HOME AFFAIRS REFERENCE(S):          BCC2018/2019884
MEMBER:Andrew McLean Williams
DATE:17 September 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 17 September 2021 at 12:37pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – genuine position – nominee now sole director and employee – qualifications, experience and day-to-day tasks – labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 6 June 2018 by a Delegate of the Minister for Home Affairs, refusing to approve the Applicant’s nomination under s.140GB of the Migration Act 1958 (‘the Act’) and r.2.72 of the Migration Regulations 1994 (‘the Regulations’).
The Applicant, A and E Contractors Pty Ltd, had applied on 9 May 2018 for approval of a position for an ‘Electrician (General)’ (ANZSCO Category 341111), to be filled by its nominee Mr Mahmoud El Moussa, who happens to now be the sole director, company secretary, and only share holder of the applicant company. Mr El Moussa was not however a company director or the company secretary of the Applicant as at the date of the nomination application.
A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and r.2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the ‘Short-term’ stream, the ‘Medium-term’ stream or the ‘Labour Agreement’ stream. Regulation 2.72 then goes on to prescribes general and stream-specific criteria, that must be satisfied, in order for the Minister to approve a nomination. These criteria are now extracted, in the attachment to this decision. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the ‘Medium-term’ stream.
The Delegate decided not to approve the nomination on the basis that the Applicant did not satisfy regulation 2.72(10), which requires that the Minister (or Delegate) be satisfied that the position associated with the nominated occupation be ‘genuine’ On the basis of the evidence before him at the time, the Delegate took the view that there was insufficient evidence to show that the application was lodged so as to fill a genuine skills shortage for electricians, and the Delegate formed the view that the primary reason for the nomination was in order to create a means to enable Mr El Moussa to remain in Australia beyond the expiry of his (then extant) Subclass 457 visa. In part, in his reasons, the Delegate expressed the view that the Subclass 482 visa program “is not intended to be used for non-citizens to establish a business in Australia and sponsor themselves”.
The applicant appeared before the Tribunal on 15 September 2021 to give evidence and make submissions and was represented in relation to the review By Mr Lorenzo Boccabella, of Counsel. On the day prior to the hearing, and then again on the morning of the hearing, Mr Boccabella filed in the Tribunal Registry a substantial bundle of documentary evidence and written submissions in aid of his client. In strict terms, these documents ought to have been filed by no later than seven days prior to the hearing, in the manner required by paragraph 5.1(b) of the Tribunal Practice Direction dated 1 August 2018 applicable to Migration and Refugee Matters. Notwithstanding, the Tribunal determined to still receive these documents and adjourned the commencement of the hearing for a period, in order that these might be read and considered.
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 the present case is whether the Applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the Applicant is an approved work sponsor and meets the requirements in r.2.72: s.140GB(2). The Applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s.140GBA must be met.
The nomination must comply with the prescribed process
The criteria for approval of a nomination for a Subclass 482 visa are set out in regulation 2.72. Each of the relevant criteria must be satisfied.
The Applicant company was approved as a standard business sponsor (‘SBS’) on 12 April 2018 such that it now meets the requirements of r.2.72(1) by means of sub-regulation 2.72(1)(a)(i). The further requirements in Regulation 2.72(1)(b) are then met by the Applicant by reason that the nominee for the proposed occupation (Mr El Moussa) is also an applicant/proposed applicant for a Subclass 482 visa, thus meeting the requirements of sub-paragraph 2.72(1)(b)(iii).
Regulation 2.72 specifies that for purposes of paragraph 140GB(2)(b) of the Act the criteria set out in regulation 2.72 are prescribed, and r.2.72(3) requires that the Applicant comply with the process set out in Regulation 2.73. In relation to those particular matters in Regulation 2.73 that are now relevant, the following is observed and noted by the Tribunal:
·The nomination was made by means of the internet, as required by r.2.73(3), using the approved form: r.2.73(4); and was accompanied by the prescribed fee: r.2.73(5).
·Training contribution charges (r.2.73(5A)) do not apply in this case by reason that the nomination application pre-dates the imposition of that requirement.
·The nominated occupation qualifies as a “medium and long term strategic skills occupation”, by it having been specified as such in instrument IMMI 18/048, made under sub-regulation 2.72(9): r.2.73(6).
·The Applicant has identified the nominee, Mr Mahmoud El Moussa, in the nomination: r.2.73(8); and has identified the occupation of ‘Electrician (general)’ with its corresponding six digit code (ANZSCO 341111): r.2.72(9);
·The Applicant has made the necessary declaration in relation to conduct in contravention of section 245AR of the Act, and the employment contract to be entered into with Mr El Moussa in the event of his Subclass 482 visa being granted will comply with all applicable requirements under Commonwealth and State or Territory laws relating to employment by means of the approved form: r.2.73(12) & (13), and that the tasks of the nominated position include a significant majority of the tasks specified for the occupation in the ANZSCO dictionary: r.2.73(14).
For these reasons the requirements of r.2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there be no adverse information known to Immigration about the Applicant, or a person associated with the Applicant; or, that it is reasonable to disregard any such adverse information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no adverse information regarding the Applicant, or any person associated with the Applicant that has been drawn to the attention of the Tribunal, such that the Tribunal proceeds on the basis that no adverse information is in existence.
For these reasons the requirements of r.2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor (‘SBS’).
The Applicant company is an SBS, having been approved as such on 12 April 2018.
For these reasons the requirements of r.2.72(5) are met.
Payment of debt mentioned in s.140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act. The Applicant in this matter is not liable to training levy charges by reason that this obligation post-dates the filing of this nomination application. In these circumstances no debt as mentioned in s.140ZO arises, such that the requirements of r.2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl.482.223 (if the nomination is in the Short-term stream) or cl.482.232 (if the nomination is in the Medium-term stream): r.2.72(14).
The nominee Mr Mahmoud El Moussa was the holder of a Subclass 457 visa, such that the requirements of r.2.72(6) are applicable. The Tribunal is now satisfied that the nomination application form does list the names of each other person holding a Subclass 457 visa that was granted that category of visa on the basis of their familial relationship with Mr El Moussa. For these reasons the requirements of r.2.72(6) are met, and r.2.72(7) is not applicable.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, Instrument IMMI 18/048. The occupation must also ‘apply to the nominee’, in accordance with the instrument.
The occupation nominated by the Applicant is that of ‘Electrician (General)’. Mr El Moussa is a qualified electrician. Originally, Mr El Moussa trained and qualified as an Electrician in Lebanon in 1990, where he then worked as an electrician for a further 18 years, prior to his arrival in Australia in 2008, sponsored for employment by an electrical and air-conditioning company operated by his Uncle in both New South Wales and Queensland. Mr El Moussa re-qualified as an electrician in New South Wales and continued to work for his Uncle’s company as an Electrician for several further years before until setting up A & E Contractors Pty Ltd in 2015, in Queensland.
The Tribunal is satisfied that the position description and occupation that has been nominated by the Applicant do correspond with the task descriptors for electricians as specified in the ANZSCO such that the occupation and its corresponding six digit code in the ANZSCO is that which is applicable to the nominated position, and applies appropriately to the nominee Mr El Moussa. The Minister has for purposes of r. 2.72(9) by means of legislative instrument IMMI 18/048 also specified the occupation of Electrician (General) (ANZSCO 341111) as a ‘medium and long term strategic skills occupation’, yet no other requirements have been specified by means of that (or any other) legislative instrument for purposes of r.2.72(9). For these reasons the requirements of r.2.72(8) and r. 2.72(9) are met in this instance.
Position must be ‘genuine’ and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation be ‘genuine’. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court upheld the Tribunal’s approach (at [34])) of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement. The Tribunal takes the view therefore that the correct approach to any determination of genuineness requires for it to look at the day-to-day work actually performed by the person occupying the nominated position, in order to see whether that work accords with that which may reasonably be expected to be performed by a person in the nominated occupation.
The Applicant company was registered on 4 July 2015. The Tribunal has seen and examined tax returns for the Applicant Company for each of the financial years 2017/18, 2018/19, 2019/20 and 2020/21 and, on the basis of these records and on the further basis of testimonial evidence provided by past clientele of the Applicant the Tribunal is satisfied that the Applicant company is trading as a ‘small business’ electrical contracting company. The employed position occupied by Mr El Moussa is a full-time position and, at least until very recently when the Applicant company also agreed to take on an electrical apprentice, Mr Moussa had been the only employee, and thus the only means by which A and E Contractors Pty Ltd has been able to generate work and income. Mr El Moussa has all the necessary qualifications and experience to be an electrician, and is registered as such. In aggregate, all of this evidence is enough for the Tribunal to be satisfied that the Applicant company is a genuine electrical contracting company, and that the nominated employment position is genuine.
For these reasons the requirements of r.2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee be engaged only as an employee under a written contract of employment and that the Applicant will give a copy of the contract, signed by the employer and nominee, to the Minister; and the occupation is not one specified under sub-regulation (13). In this case, sub-regulations (12) and (13) are not applicable.
The Tribunal has seen a copy of the written employment contract between Mr El Moussa and the Applicant that will come into force in the event that Mr El Moussa obtains a Subclass 482 visa. The Tribunal has been informed, and now accepts that Mr El Moussa will only be engaged by the Applicant as an employee. A copy of the employment contract was supplied to the Minister as part of the original nomination application.
For all these reasons the requirements of r.2.72(11) are met by the nomination application.
Language Test Requirements
Sub-regulation 2.72(14) requires that, in certain circumstances, the Minister may require evidence that nominees meet specified language test requirements. Those circumstances do arise in this case. Mr El Moussa undertook an English language proficiency test on 11 August 2017, and achieved the standard required by IMMI 18/032 for 482 Visa Applicants in the Medium-term stream.
Accordingly, the requirements of sub-clause 2.72(14) are satisfied.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in instrument IMMI 18/033, which is $53,900. In this case the nominee’s annual earnings under the employment contract will be $72,914.14 (an amount exceeding the award rate for an electrician), such that the requirements of sub-regulation 2.27(15) and therefore also (16) do not apply. It is unnecessary for the Tribunal to consider sub-regulation 2.72(17)
Employment conditions
Regulation 2.72(18)(a) requires that there be no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b).
In this case there is no information to suggest that the employment conditions for the nominee will be any less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location. Equally, it is the case that the Applicant is lawfully operating a business in Australia and there is no evidence suggesting that the Applicant has engaged in any form of discriminatory recruitment practices. In these circumstances the requirements of each of sub-regulations 2.72(18)(a) & 2.72(18)(b) are met by the Applicant.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply (which they do not in this instance), or the Minister has determined it would be inconsistent with a specified international trade obligation. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
In this case labour market testing requirements do apply to the Applicant. There have been no redundancies or retrenchments from the Applicant prior to it making the nomination application. The relevant instrument specifying the manner for undertaking labour market testing that is applicable in this instance is Instrument IMMI 18/059, which requires that the labour market testing be undertaken in the 12 months immediately prior to the lodgement of the nomination application.
Labour market testing was undertaken in this instance by means of the Applicant advertising a vacancy for an electrician on-line, by means of the recruitment websites ‘Indeed’ and ‘Jobsearch’. Advertisements were placed on the Indeed website for 4 weeks commencing on 4 April 2018, and on the Jobsearch website for a further 4 weeks, commencing on 24 April 2018. The Tribunal has been informed, and now accepts, that these advertisements solicited 20 applicants, however only two of these were subsequently assessed as suitably qualified. However, further analysis of those prospective candidates for employment identified that one of them was primarily experienced in heavy industry electrical maintenance, and the other predominantly in low voltage security and communications systems. Although each were qualified as electricians, neither were assessed as having suitable experience or background for general electrical work (including solar system and air conditioning work) in a predominantly domestic setting, which is the mainstay of the work performed by the person in the nominated position with the Applicant company. Those assessments are rational and explicable, such that the Tribunal accepts that labour market testing did not produce a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) who was readily available as an alternate person to fill the nominated position.

For these reasons, the labour market testing requirements in s.140GBA are assessed as having been met by the Applicant.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s.140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s.7 of the Migration (Skilling Australians Fund) Charges Act 2018, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s.140GB(2)(aa). As this nomination application pre-dates 12 August 2018 this requirement is inapplicable to the Applicant.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Andrew McLean Williams
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) … ,
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2021] AATA 3614

17 September 2021

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Immigration

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