A List Stud Pty Ltd (Migration)

A List Stud Pty Ltd (Migration) [2023] AATA 3697 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  A List Stud Pty Ltd
REPRESENTATIVE:  Mr Kian Bone (MARN: 1069183)
CASE NUMBER:  2100361
HOME AFFAIRS REFERENCE(S):          BCC2020/1629657
MEMBER:C. Packer
DATE:31 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 31 October 2023 at 6pm

CATCHWORDS
MIGRATION – nomination – Medium-term stream – Chief Executive or Managing Director – position associated with the nominated occupation is genuine – position cannot be filled locally – training benchmark commitments and obligations – applicant is approved as a standard business sponsor – no adverse information known to Immigration – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
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 by a delegate of the Minister for Home Affairs on 22 December 2020 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 27 May 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 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 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are 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 reg 2.72(10) because the delegate did not consider the position associated with the nominated occupation to be genuine.
The applicant was represented in relation to the review.
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 reg 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
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal finds:
·The applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);
·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);
·The nomination is in the medium-term stream as the occupation is a medium-term strategic skills specified occupation: reg 2.73(6);
·The applicant has identified the nominee Siu Yee Lee, in the nomination: reg 2.73(8);
·The nomination includes the name of the occupation and the corresponding 6 digit code Chief Executive or Managing Director - 111111, the location/s at which the occupation will be carried out (3670), the proposed period of stay for a visa granted on the basis of the nomination (up to 4 years), the annual turnover for the nomination: reg 2.73(9);
·The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);
·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);
·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and that the position is in the person’s business: reg 2.73(14).
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
Departmental systems show that there is no adverse information known to Immigration. The Tribunal is satisfied there is no adverse information known to Immigration about the applicant or a person associated with the applicant, within the terms of regs 1.13A and 1.13B. For these reasons the requirements of reg 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. Departmental systems that show a Standard Business Sponsorship agreement was approved on 20 June 2020 to 20 June 2025. For these reasons the requirements of reg 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. There is no information before the Tribunal that shows the applicant owes a debt mentioned in s 140ZO. For these reasons the requirements of reg 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. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
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, IMMI 19/048. The nominated occupation concerns a Managing Director - 111111. This corresponds to an occupation and 6-digit code specified in the instrument in the medium-term stream.
At the time of lodgement, the nominated occupation was subject to an inapplicability condition: IMMI 19/048. The operation of the inapplicability condition means that the nominated position must have either: Guaranteed annual earnings of AUD180,000; or, Be an intra-company transfer. In this case, the nominated wage of $190,000 is greater than the Guaranteed annual earnings of AUD180,000.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
On 25 August 2023 the applicant provided a large volume of documents and information, including:
·A List Stud Pty Ltd Annual reports June 2022 and June 2021, and Auditor’s reports
·BAS statements July 2021 to June 2023 (Laceby Lodge Stud Pty Ltd)
·Detailed organisation chart for A List Stud Pty Ltd showing the nominee as Managing Director, and five named employees, with 39 further positions listed
·A Payroll Employee Summary (undated) that lists 45 employees
·ATO documents that show the income tax consolidated group comprises the Head company A List Group Holdings Pty Ltd, and members A List Stud Pty Ltd (joined 6/3/2020), Goodview Stud Pty Ltd and Laceby Lodge Stud Pty Ltd (both joined 30/8/2019).
·Nominee’s employment agreement dated 26 May 2020, and position description
·Documents showing the nominee’s visa grants (400 visa and BVA)
·Documents showing the grant of 482 visas to employees on high wages: Bueno Garcia Do Carmo (Horse Trainer – 361112); Joyce Chan (Customer Service Manager – 149212); Sunwoo Kim (Animal Attendants and Trainers nec – 361199). The sponsor is A List Stud Pty Ltd.
A Position Description lists:
Overall management and future direction of the business.
Chief liaison with auction house and prominent Australian horse racing stables.
Liaison with Australian trainers with assistance of stud manager (Australian worker).
Liaison with Hong Kong Jockey Club.
Oversee business operation and planning, setting marketing strategy, build and maintain good business relationship with clients and business partners.
Experience in cross border racing horse arrangements, established network of Australian and
overseas stakeholders, existing international clientele and business connections.
Strong management skills with international exposure (more particularly in Hong Kong, Macau and China horse racing)
Familiar with horse racing business operations.
The business will be implementing a first of a kind "smart stud" which utilise extensive technology to compliment and improve farm operations, and development of a novel application.
A submission of 25 August 2023 states in part:
We attach the nominee’s employment contract and position description. The nominated position is highly skilled and the duties align closely with the ANZSCO classification of Chief Executive or Managing Director. Please see the below table where we have listed the tasks and duties listed in ANZSCO and aligned them with the relevant duties listed in the Visa Applicant’s position description.
These clearly demonstrate that the duties of the nominated position correlate with the occupation description in ANZSCO.
A submission of 27 May 2020 submitted in part:
Genuine Position
According to policy in order to assess the genuineness of the position, case officers should take
a number of factors into consideration as set out below.
The position is highly skilled and the duties align with the ANZSCO classification and not just the
title of the role. The role of Managing Director of a successful company is a highly skilled role
evidenced by the high salary it attracts both in this role and as evidenced by the attached
documents showing the expected salary of Managing Directors in Australia.
While being a shareholder in the business is not one of the requirements of being a Managing
Director, a keen business sense and experience in running a successful company is also required.
The position needs to be filled by someone who is equipped to plan and guide the direction of the business. As the Director of the business, the nominee is the only person able to act in the role
of Managing Director. It is not possible for another individual to fill this role as they will not have
the required proprietary knowledge to be a Managing Director. The nominee’s extensive
experience and competencies as a business owner for a number of businesses in Hong Kong
over the past 30 years combined with his experience in the horse racing industry make him
uniquely qualified to fill this role.
You will see the organisational chart which shows where the nominee fits within the organisation.
He has been steering the business from Hong Kong and making regular trips to facilitate sales of
bloodstock, purchase of property and running of his companies while undertaking business visitor
activities however the business has confirmed that in order to continue to grow and meet their
expectations, the Managing Director is required to be in Australia in a full-time capacity. Having
the Managing Director in Australia on a full-time basis will ensure there are no delays or missed
opportunities and this will allow the consolidated business to become as successful as it’s Hong
Kong counterpart. The applicant is the only non-Australian employee currently employed in the
business and at present the business currently only employs Australian employees as they
require local knowledge of the Australian horseracing industry and landscape.
The nominee’s international knowledge of the horseracing industry on a global level is imperative
for growing the business in Australia. This combined with the nominees many contacts in the
industry both globally and in Australia further evidence the need for him to be in Australia
continually cultivating these relationships to ensure the success of the business.
The Australian horse racing industry is growing (it is one of the few sports which continued to
operate through the COVID-19 pandemic) and as detailed in the Business Plan it is a thriving
industry that is well placed for a new up and coming Australian business to be involved. Denying
this business the tools it requires to succeed will deny the Australia racing industry millions of
dollars of investment and Australian jobs will be lost and/or not created.
There have been no retrenchments or redundancies in the business or any associated entities of
the business. In fact despite the economic downturn due to COVID-19, A List Stud Pty Ltd are
still in a position to purchase horses to add to their Stud.
We confirm the position has not been created to secure a migration outcome as the applicant is
already performing the position overseas and has been performing the role for the other
associated entities for a number of years. The reason for the relocation to Australia is that it has
become apparent that it is imperative for the businesses success that he be onshore in Australia
performing the role in a full-time capacity rather than from offshore. While the position is being
filled by a director in some circumstances may be seen as being created to secure a migration
outcome, the role of Managing Director can only be filled by a Director of the company and
therefore this should not be seen as circumventing the visa process. We have carefully assessed
all visa options and we are of the opinion the Subclass 482 visa is the most appropriate visa for
the nominee.
We note that relevant departmental policy permits “self-sponsorship”:
The above policy settings do not prevent individuals from sponsoring themselves (that is, "selfsponsorship")
– however, in such cases there needs to be another reason for the position being
created … It cannot just be to facilitate a long-term stay in Australia and/or create a pathway to
permanent migration … Such arrangements can be approved under policy if there will be a genuine
economic benefit to Australia.
As we have stated above, the nominee has been managing the business of the nominator
overseas prior to this nomination being made. The position genuinely exists and the employment of all Australian employees depends on the ability of the Managing Director to manage the
business locally. The nominee’s business has already invested many millions of dollars in the
Australian horse racing industry and fully intends to continue this investment. There will be a
genuine economic benefit to Australia as has already been demonstrated by his past purchases
of horses and property in Australia. Failure of the Managing Director to secure this visa will see
Australia lose millions in investment and Australians lose their jobs.
While the sponsoring company has only been in existence for a short period of time, its associated
entities in both Australia and Hong Kong have been in existence for over 5 years and therefore
evidence the longevity of the business and role. While the current business has a small turnover,
the business plan details the intended turnover for the future of the business taking into
consideration the Australian landscape and the projection of the associated entities.
A List Stud Pty Ltd will provide a genuine economic benefit to Australia by creating jobs in the
horse racing industry and exposing numerous racehorses to the very lucrative Asian horse racing
market through the nominee’s business connections.
The nominee has been a successful business man for over 30 years having grown 3 companies
from small businesses to established and successful companies. His skills and experience as
well as his professional success has allowed him to follow his passion for racing horses into
successful horse trading businesses. We have attached invitations and a reference letter from
Magic Millions confirming the business relationship between themselves and the nominee, the
Managing Director of the business. A similar letter from Goldolphin detailing their business
relationship with Mr Lee is also attached. We have included invitation letters from Inglis requesting
the presence of the nominee at their auctions.
These are three of the largest players in the global horseracing industry who the nominee has
built prosperous and important relationships with the ensure the ongoing clientele of the business
to cement it’s success in Australia. These references should be given significant weight as to the
genuineness of this position.
The nominee’s contacts globally in the horse racing industry are one of the reasons his
businesses have performed so well. His years of experience have ensured he has a keen eye for
picking horses that excel on the track and as such will be an asset to the Australian racing industry both locally and ensuring global exposure for his horses and staff.
Based on the material before it, the Tribunal accepts that the applicant is a company within an income tax consolidated group comprising the Head company A List Group Holdings Pty Ltd, and members A List Stud Pty Ltd, Goodview Stud Pty Ltd and Laceby Lodge Stud Pty Ltd. The annual reports for the applicant show a significant increase in revenue, and profit before income tax. Total equity has also significantly increased. Departmental systems show the applicant had nominations approved on 9/5/2022, 7/3/2023 and 15/8/2023. The applicant provided documents to show the Department has granted 482 visas to nominees sponsored by the applicant, on 29/8/2022, 13/3/2023 and 15/8/2023.
In sum, the Tribunal is satisfied the nominee fills the position of Managing Director and that the business has expanded in recent years. In 2022 and 2023 the Department has approved three nominations lodged by the applicant, and the related 482 visas, which shows the Department is satisfied the business is genuine and financially able to support high income employees. The Tribunal finds that the nominated occupation is genuine, and the associated position is full-time. For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will 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.
A contract of employment dated 26 May 2020 for the nominee was provided in the review. This shows a base salary of $190,000 plus super. The Tribunal is satisfied the nominee would be engaged as an employee under a written contract of employment by the applicant. For these reasons the requirements of reg 2.72(11) are met.
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 the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
In the application the applicant sought to nominate the nominee on a wage of $190,000. An employment contract provided shows a salary of $190,000 plus super.
The applicant’s submission of 25 August 2023 states in part:
6. Inapplicability conditions
At the time of lodgement, the nominated occupation was subject to an inapplicability condition see
attached Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Amendment
Instrument 2019 as attached.
The operation of the inapplicability condition means that the nominated position must have either:
• Guaranteed annual earnings of AUD180,000; or,
• Be an intra-company transfer.
We confirm that the inapplicability condition was met as the nominated salary of the nominee is well
above the specified minimum.
7. Annual market salary rate (AMSR)
The nominated salary in this application is $190,000 per annum. The nominated salary was aligned
with the annual market salary rate for the nominated occupation and continues to align with the salary
of a Managing Director in his field particularly in a growing company where profits are being
redirected into the expansion of the business.
The test for satisfying the AMSR requirement, at the time of application, was found in legislative
instrument IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of
Annual Market Salary Rate. Where there is not an equivalent Australian employee in the sponsoring
business and there is no fair work instrument, state industrial instrument or transitional instrument
applicable to a nominated occupation, the AMSR for the nominated position can be demonstrated by
“relevant information” which is:
a) information published on the Australian Government’s Job Outlook website;
b) job advertisements from a national recruitment website or national print media that are in English
and specify the salary arrangements for the advertised position;
c) written advice from registered employer associations and/or unions;
d) remuneration surveys generated across the relevant industry by a reputable organisation or
body.
At the time of application, we provided the following:
(a) Indeed.com salary survey indicating an average salary of $138,731 per annum; and
(b) Seek advertisements demonstrating 387 available positions offering a salary up to
$200,000.
We have provided the updated and equivalent information in this response.
The TSMIT was $53,900. The Tribunal accepts the applicant has determined the annual market salary rate for the nominated occupation in accordance with the relevant instrument. For these reasons the requirements of reg 2.72(15)(c) are met.
The rate, excluding any non-monetary benefits, for the occupation is not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(d) are met.
The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.
Employment conditions
Regulation 2.72(18)(a) requires that 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 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: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
Based on the material before the Tribunal, there is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.
Based on the material before the Tribunal, there is no information that indicates the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(b) are met.
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 ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
The applicant did not undertake LMT for the reason:
International trade obligation. A current employee of an associated entity of the sponsors’ business and that associated entity operates in a WTO member country. Nominated as an Executive or Senior Manager and Will be responsible for the entire or a substantial part of the company's operations in Australia.
The labour market testing condition does not apply to the applicant, having regard to LIN 20/029: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2020. It would be inconsistent with an international trade obligation determined in the relevant instrument – s 140GBA(1)(c).
For these reasons, the labour market testing requirements in s 140GBA are not applicable.
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 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). 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). Departmental systems show the charge was paid. For these reasons the requirements of s 140GB(2)(aa) are met.
Conclusion
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.
C. Packer
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)…

[2023] AATA 3697

31 October 2023

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Immigration

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