A2Z Building & Construction Pty Ltd (Migration)

A2Z Building & Construction Pty Ltd (Migration) [2024] AATA 1167 (6 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  A2Z Building & Construction Pty Ltd
REPRESENTATIVE:  Mr Damneet Ahluwalia (MARN: 0960501)
CASE NUMBER:  2201707
HOME AFFAIRS REFERENCE(S):          BCC2020/400671
MEMBER:SM Michael Cooke
DATE:6 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
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Statement made on 06 May 2024 at 12:46pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – contract administrator – genuine position – nominee the brother of nominator – company’s ongoing growth and significant projects contracted – nominee’s skills and experience – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 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 by a delegate of the Minister for Home Affairs on 20 January 2022 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 12 February 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 Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy subregulation 2.72(10)(a) because the delegate was not satisfied that the position associated with the occupation was genuine.
The applicant appeared before the Tribunal on 3 May 2024 to give evidence and present arguments.
The applicant was represented in relation to the review by Mr Damneet Ahluwalia who attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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.
Findings and reasons about whether the process in reg 2.73 was followed considering the matters below:
·The person is nominating an occupation under s 140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or 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 Short-term stream if the occupation is a short term specified skilled occupation: reg 2.73(6);
·The applicant has identified the nominee in the nomination: reg 2.73(8);
·The nomination includes the name of the occupation and the corresponding 6 digit code, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, and any other specified information –: 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, unless the occupation is exempt –: 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 (or the relevant instrument if no ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; and, unless the occupation is exempt that the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14).
The Tribunal finds from that the evidence on file that 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.
The Tribunal finds no evidence that that there is any adverse information known to Immigration about the applicant or a person associated with the applicant.
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.
The Tribunal finds from the evidence on file that the person is a standard business sponsor.
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.
The Tribunal finds no evidence that the person has any outstanding debt under 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. 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: reg 2.72(6)(a) and reg 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): reg 2.72(14).
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.
For these reasons the requirements of reg 2.72(6) are met.
The Tribunal finds that the nominee satisfies the language test requirements and evidence has been provided that the nominee satisfies any language test requirements in the relevant instrument that would apply if they were a nominee for a Subclass 482 visa in the Short-term as applicable.
For these reasons the requirements of reg 2.72(14) are met.
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. The occupation must also apply to the nominee in accordance with the Instrument.
The Tribunal finds that the nominated occupation and its 6-digit code (Contract Administrator – 511111) correspond to an occupation and 6-digit code specified in the relevant instrument.
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.
The Tribunal has had the opportunity to explore the genuineness of the position in oral evidence during the hearing. The Tribunal had noted (from the evidence on file) that the nominee had a significant command of the English language as exemplified in his overall high score in an approved language test. The Tribunal also had the benefit of a work history tendered by the applicant. This indicated the applicant had been engaged in the nominated task for three different employers in the United Arab Emirates for 10 years.
The Tribunal noted that the Persian Gulf area had been the epicentre of much modern international building construction. Apart from English, the applicant informed the visa applicant was fluent in Arabic which (he advised) was a significant language used on his Australian company work site. It was also used a lot in other construction entities where he had the controlling say. This, the nominees advised, would facilitate the flow of work both on site and when dealing with construction related authorities where the communication was solely in English. Importantly, the Tribunal noted that the visa applicant nominee, therefore, had the experience to ‘hit the ground running’.
The nominator advised that in the years since he first applied for an approved nomination his businesses had had significant ongoing financial success and growth. This fact had only strengthened the need for someone like the nominee. The Tribunal suggested to the nominator applicant that if he had had this success already - why did he need to hire his brother from the UAE?
He insisted (in response) that he had tried local talent. He had, in fact, had one success with an Australian staff member called Bilal. However, his Arabic unfortunately was poor in comparison to his brother, and he had none of his vast experience. He needed someone skilled and fluent in both languages. Other contract administrators he had hired (and spent months training) took off to other employers. This put him back months every time. He needed someone not only capable but trustworthy and committed to the job. He was tired of having to involve himself in “on the tools” (so to speak) activities when he could be securing new contracts and managing his business. His firm and associated entities had many significant contracts in the offing as his business had grown exponentially in the last few years. He elaborated further on significant contracts he had “in the pipeline”. The Tribunal noted evidence of construction projects he had already submitted on file.
The Tribunal alluded to the policy behind business and skilled visas which is to allow foreign nationals to fill vacancies when local talent was not available. In this way entrepreneurs could expand and succeed - to the benefit of all Australians. The program, however, was not to be used as a back door for family reunion type purposes. The applicant nominator indicated that his and his entity companies had some significant projects planned in various Australian states – particularly in the medical services area. He basically used subcontractors for most of the work but effectively his company and entities were dealing with up to 150 individuals at a time - on different projects. He needed someone like his brother who had could trust to facilitate all these new prospects and projects. His brother was a very flexible committed individual. He gave the personal example of him being readily available 24/7 to assist with advice whenever he rang him overseas.
The Tribunal has considered the applicant’s justification for wanting to nominate his brother (located in the UAE) for the position. The nominee is highly skilled in his field and is someone who could readily integrate into the nominated activity in Australia. The Tribunal is satisfied that the position associated with the nominated occupation is not a subterfuge for family reunion. It is satisfied that instead the position associated with the nomination is a genuine and full time position which will only enhance the ongoing success of the nominator firm.
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, unless the nominated occupation is specified in the Instrument. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
The Tribunal finds the nominated occupation is specified in the relevant Instrument and the applicant is not an overseas business sponsor. The nominee will be engaged as an employee under a written contract of employment by the applicant or an associated entity; and the applicant will give the Minister a copy of the contract signed by the employer and nominee.
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 see ‘TSMIT’ tab of the Register of Instruments: Business Visas]. 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 the Instrument: 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 (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
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.
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.
The Tribunal finds that there is no information which 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.
The Tribunal finds no evidence that 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).
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 as set out in the Instrument. In addition:
·the nomination must be accompanied by the evidence specified in ss 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 manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in the Instrument.
Findings and reasons about:
Whether the labour market testing condition applies to the applicant, having regard to:
a. whether it would be inconsistent with an international trade obligation determined in the relevant Instrument – s 140GBA(1)(c); and
b. whether the nomination is subject to the major disaster exemption or the skill and occupational exemptions (– s 140GBB and s 140GBC;
The Tribunal finds that neither of the above circumstances apply to the applicant.

If the labour market testing condition applies, whether:
a. labour market testing has been undertaken in the specified period– ss 140GBA(3)(a) and (4);
b. labour market testing was undertaken in the manner set out in the legislative Instrument – ss 140GBA(3)(aa) and (5);
c. the nomination was accompanied by evidence of the labour market testing – ss 140GBA(3)(b)(i) and (6A);
d. if relevant, the nomination was accompanied by information about recent retrenchments/redundancies – s 140GBA(3)(b)(ii);
e. there is any suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder not readily available to fill the nominated position – s 140GBA(3)(d); and
f. if any Australians or permanent residents were made redundant/retrenched whether the testing post-dates the redundancies or retrenchments – s 140GBA(4A).
The Tribunal finds (from the evidence before it) that the labour market testing requirements have been undertaken in the required manner and have been evidenced. There was no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position and no Australians or permanent residents were made redundant/retrenched.
The Tribunal finds that requirements in s 140GBA are met.
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).
The Tribunal finds that the applicant is liable to pay the charge and the applicant has paid the charge. For these reasons the requirements of s 140GB(2)(aa) are met.
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.
Michael Cooke
Senior 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)…

[2024] AATA 1167

6 May 2024

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness

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