Acacia Ridge Container Park Pty Ltd (Migration)

Acacia Ridge Container Park Pty Ltd (Migration) [2023] AATA 3641 (23 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Acacia Ridge Container Park Pty Ltd
REPRESENTATIVE:  Ms Shadi Golchin (MARN: 2014964)
CASE NUMBER:  1930803
HOME AFFAIRS REFERENCE(S):          BCC2019/4189725
MEMBER:Terrence Baxter
DATE:23 October 2023
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 23 October 2023 at 12:02pm
CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – position of Computer Network and Systems Engineer – genuine position – nomination training contribution charge – updated financial information – tasks of the position correspond to nominated occupation – conditions no less favourable – labour market testing – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, s 140
Migration Regulations 1994, rr 1.03, 1.13, 2.57, 2.72, 2.73, 5.42
Superannuation Guarantee (Administration) Act 1992
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
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 11 October 2019 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, Acacia Ridge Container Park Pty Ltd, applied for approval on 23 August 2019. The applicant nominated Mr Michael Ombaka (the nominee) in the position of Computer Network and Systems Engineer. The company operates a business maintaining, repairing and testing international intermodal containers (known as ISOs) that meet the standards specified by the International Organisation for Standardisation.
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)(a) of the Regulations because the delegate found that the position associated with the nominated occupation was not genuine.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 30 October 2019.
Ms Tracy Gee, the Operations Manager of the applicant appeared before the Tribunal on 30 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee and from Mr Brandon Gee, the Budget and Finance Officer of the applicant.
The applicant was represented in relation to the review by its registered migration agent, Ms Shady Golchin of Results Migration, Brisbane, Queensland. The representative attended the Tribunal 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 (LMT) requirements in s 140GBA must be met.
Evidence presented prior to the first hearing
The applicant produced to the Department of Home Affairs (the Department) the following documents:
a.The nomination application.
b.An organisational chart.
c.Job advertisements for the position.
d.An employment contract dated 7 August 2019.
e.Market salary evidence.
f.A position description.
g.A comparison of the tasks to be performed in the position with the tasks specified in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) classification for the occupation of Computer Network and Systems Engineer.
h.A schedule of the tasks to be performed in the position.
i.A description of the responsibilities of various employees identified in the organisational chart.
j.Draft proposals for the upgrading of the applicant’s Microsoft server.
k.An ASIC current and historical company extract in respect of the applicant.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.An updated ASIC current and historical company extract.
c.Evidence from the Australian Business Register of the applicant’s registration for GST.
d.Evidence of the applicant’s appointment as a standard business sponsor for five years from 26 August 2019.
e.The applicant’s financial reports and taxation returns for the 2021 and 2022 financial years.
f.Evidence of the payment of the application fee and the nomination training contribution charge by the applicant.
g.A copy of legislative instrument LIN 19/048.
h.Business activity statements for the period from April 2021 to March 2023.
i.An ASX release by DGL Group Ltd (the holding company) dated 28 February 2023 including reference to its acquisition of the applicant.
j.An audited financial report of the holding company and its controlled entities for the half-year ended on 31 December 2022.
k.Evidence of the nominee’s qualifications.
l.A current organisational chart.
m.Current market salary evidence.
n.ATO income statements of the nominee for the 2021, 2022 and 2023 financial years.
o.Submissions from the applicant dated 23 June 2023 and from the holding company dated 24 August 2023.
p.Photographs of the nominee at work.
q.An employment contract dated 1 July 2023.
r.A submission regarding tasks performed by the nominee including supporting evidence.
Evidence presented at the hearing regarding the applicant’s operations
Ms Gee stated that the applicant had been established in 2004 and that it dealt with over 150 international and national clients with regard to ISO tanks and road tankers. She stressed that ISO tanks carried chemicals and bulk liquids and that they were quite different to standard containers.
Ms Gee said that the company’s operations were badly affected by the COVID-19 pandemic. She said that, because they dealt with a large number of international clients, they began to feel the effects of the pandemic in November and December 2019, before the effects were widely felt in Australia. She said that there had been a shortage of ISO vessels and that the applicant’s costs had increased as a result of the pandemic. She stated that business had now picked up dramatically.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A submission from the representative dated 13 September 2023.
b.A submission from the applicant dated 13 September 2023.
c.A statutory declaration of Ms Gee dated 13 September 2023 accompanied by evidence of the date of the placement of job advertisements in 2019.
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.
2.73 Application requirements
Regulation 2.73 applies in relation to a person who is nominating a proposed occupation under s 140GB(1)(b) of the Act in relation to any of the following (the nominee):
a.a holder of a Subclass 457 (Temporary Work (Skilled)) visa.
b.a holder of a Subclass 482 (Temporary Skill Shortage) visa.
c.an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
Regulation 2.73(2) provides that, for the purposes of s 140GB(3) of the Act, the applicant may nominate a proposed occupation in accordance with the process set out in the regulation.
The requirements for nomination for this application are:
a.reg 2.73(3) – the nomination must be made using the Internet.
b.reg 2.73(4) – the nomination must be made using the form specified by the Minister in the relevant instrument.
c.reg 2.73(5) – the nomination must be accompanied by the relevant fee.
d.reg 2.73(5A) – the nomination must be accompanied by the relevant nomination training contribution charge.
e.reg 2.73(6) – the occupation must be nominated in the Medium-term stream.
f.reg 2.73(8) – the nomination must identify the nominee.
g.reg 2.73(9) – the name of the occupation and the corresponding 6-digit code specified in the relevant instrument must be provided as part of the nomination.
h.reg 2.73(10) – depending on whether it would be inconsistent with Australia’s international trade obligations, the proposed period of stay must be between one and four years.
i.regs 2.73(12), (13) and (14) – certain certifications are provided with the nomination.
Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met.
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.
There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
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 applicant has provided evidence that it was approved as a standard business sponsor from 26 August 2019 for five years.
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 evidence before the Tribunal that there is any debt due by the applicant for the recovery of any nomination training contribution charge or late payment penalty.
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 in 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.
Specified occupation
Regulation 2.72(8)(a) requires that, if the nominated occupation is in the Medium-term stream, the occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force under reg 2.72(9) at the time the nomination is made. Reg 2.72(8)(b) requires that the occupation must apply to the nominee in accordance with the instrument.
Regulation 2.72(9) specifies that 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.
The relevant instrument is LIN 19/048.
The occupation proposed by the applicant was Computer Network and Systems Engineer with the 6-digit ANZSCO code 263111. This occupation and 6-digit code correspond to the occupation of Computer Network and Systems Engineer and its 6-digit code is specified in the instrument as a medium and long-term skilled occupation. Accordingly, the requirement in reg 2.72(8)(a) is met.
Does the occupation apply to the nominee in accordance with the instrument?
LIN 19/048 provides that an occupation applies to a nominee if the tasks of the occupation that are to be performed by the nominee correspond to the tasks set out in the ANZSCO code specified for the occupation. The instrument further provides that an occupation does not apply to a nominee if an inapplicability condition specified in the instrument applies. There is no inapplicability condition applying to this occupation.
The tasks specified in the ANZSCO for the unit group Computer Network Professionals (which includes Computer Network and Systems Engineers) include:
oanalysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems
oresearching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance
oassessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems
oproviding specialist skills in supporting and troubleshooting network problems and emergencies
oinstalling, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations
oproviding network programming in support of specific business needs and requirements
opreparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions
omonitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance.
The nominee’s key responsibilities according to the position description are as follows:
• Provide technical assistance in all aspects of the field. You will help install, upgrade and troubleshoot hardware and software systems.
• We are looking for an Engineer to maintain, upgrade and manage our client side software, hardware and networks.
• Resourcefulness is a necessary skill in this role. You should be able to diagnose and resolve problems quickly. You should also have the patience to communicate with a variety of interdisciplinary teams and users.
• Your goal will be to ensure that our technology services run smoothly and efficiently
• Recommending corrective actions plans and improvements in the resolution of noncompliance with standards detected through monitoring and auditing processes and procedures.
• Developing support procedures and strategies for systems, networks, operating systems and applications development, conducting and providing technical guidance and training application software and operation procedures. Taking responsibility for configuration management and overall operational readiness of network systems.
• Assisting in troubleshooting, diagnosing, testing and resolving system problems and issues, fault finding services for network problems.
• Analysing, evaluating and diagnosing technical problems and resolutions of faults and any issues such as installation of our Environmental treatment plant, providing maintenance, repair, upgrade and configuration and troubleshooting including of all our desktops, software, printers, internet, email, databases, operating systems and security systems.
• Identifying variations and potential high-risk areas in securing adhere to standards and procedures.
According to the ANZSCO, the occupation of Computer Network and Systems Engineer is a Skill Level 1 occupation requiring a bachelor degree or higher qualification. Evidence has been provided to the Tribunal that the nominee holds a degree of Master of Information Systems and Information Technology Management.
The Tribunal discussed with Ms Gee at the hearing whether the tasks performed by the nominee corresponded with the tasks of the occupation of Computer Network and Systems Engineer as set out in the ANZSCO, or whether they corresponded with the tasks of a lower-skilled occupation, for example, an ICT Support Technician (a Skill Level 2 occupation). She described how there were no ‘off-the-shelf’ programs that were suitable for use in the applicant’s business. She said that the software operated by the applicant prior to the nominee’s employment did not allow for the retrieval of vital information relating specifically to ISO containers. She stated that the applicant was in the process of adapting an existing program to meet the applicant’s requirements.
The nominee also gave evidence regarding his tasks, he not having been present in the hearing when Ms Gee provided her evidence. The nominee rejected the suggestion that his tasks were of a lower skill level than the tasks of a Computer Network and Systems Engineer. He said that his tasks were crucial to how the applicant’s business operated. He provided the details of how he had developed asset maintenance software to meet the applicant’s specific requirements.
The applicant provided comprehensive evidence before and after the hearing of the nominee’s tasks and a demonstration of how those tasks aligned with the relevant tasks in the ANZSCO. Having regard to all the evidence, the Tribunal is satisfied that the tasks of the occupation that are to be performed by the nominee correspond to the tasks set out in the ANZSCO. The Tribunal is satisfied that the occupation applies to the nominee in accordance with the relevant instrument. Accordingly, the requirement in reg 2.72(8)(b) is met.

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 (Cargo First), 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.
In Cargo First the Federal Circuit Court of Australia was considering reg 2.72(10)(f) of the Regulations (as it was at that time) and considered the issue as meaning ‘determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be’. In short, there is no pre-determined test for determining whether a nominated position is ‘genuine’, and the issue involves the Tribunal considering the tasks and duties associated with the position and described as the occupation for the nomination, and whether the nominee performs those tasks, and the commensurate level of experience of the nominee to perform those tasks.
Based on the information provided to the Department, the delegate was not satisfied that this requirement had been met. The delegate found that the applicant had not provided consistent and verifiable financial information to determine whether the level of trade of the business was sufficient to establish that there was sufficient work for the nominee to be performing the tasks of the nominated occupation on a full-time basis and whether the business was able to support the position financially.
The question of the applicant’s financial capacity to support the position financially can be dealt with quickly. The applicant recorded sales of $4,019,562 in the 2022 financial year and a net profit before tax of $174,873. That profit was achieved after payment of directors’ salaries and superannuation of $325,223. On 1 November 2022, the whole of the applicant’s shareholding was acquired by the holding company for a consideration of $5,270,645. On 31 December 2022, the holding company had net assets of $327,104,000.
The Tribunal has recorded previously in these Reasons its consideration of the question whether the nominee performs the tasks and duties associated with the position.
The Tribunal has considered the Department’s policy in relation to this requirement contained in its Procedures Advice Manual. The policy states that circumstances where the genuineness of the position may be queried include:
a.The nominated position may have been created to secure a migration outcome for the nominee.
b.The tasks of the position do not substantially align with the tasks of the nominated occupation as described in the ANZSCO.
c.The position may not be consistent with the nature of the business.
The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: ‘When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case’. The Tribunal considers that it is appropriate to have regard to the circumstances referred to in the policy when considering this requirement. The Tribunal finds that:
a.Ms Gee stated at the hearing that the applicant had advertised for the position of an IT specialist and that the nominee had first become known to the applicant when he applied for the position. There is no evidence to suggest that the position has been created to secure a migration outcome for the nominee.
b.In accordance with the Tribunal’s earlier finding, the tasks to be performed in the occupation correspond to the tasks in the ANZSCO.
c.Based on all the evidence, the position is consistent with the nature of the applicant’s business.
The Tribunal is satisfied that the position associated with the occupation is genuine. Accordingly, the requirement of reg 2.72(10)(a) is met.
The employment agreement provides that the nominee’s employment is full-time and that he is to work 38 hours per week. Accordingly, the requirement of reg 2.72(10)(b) is met.
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 IMMI LIN 19/212. 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. The Tribunal finds that the nominated occupation of Computer Network and Systems Engineer is not specified in the relevant instrument, LIN 19/212 and accordingly reg 2.72(11) must be met.
The employment contract provides that the nominee will be engaged as an employee by the applicant as employer. A copy of the contract signed by the applicant and the nominee has been given to the Tribunal.
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 ‘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 (TSMIT) specified in the instrument, 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).
The current salary payable to the nominee is $73,334.56 per annum. The specified amount of annual earnings in instrument IMMI 18/033 is $250,000. 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.
Regulation 2.72(15)(c) – has the applicant determined the rate for the occupation in accordance with the instrument?
The applicant does not have an Australian worker performing equivalent work to that to be performed by the nominee. The instrument provides that, in these circumstances, where there is no Fair Work instrument, State industrial instrument or transitional instrument applicable to the nominated occupation, the rate is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information. The employment agreement provides that there is no award applicable to the nominated occupation. ‘Relevant information’ is defined in the instrument as including job advertisements from a national recruitment website or remuneration surveys generated across relevant industry by a reputable organisation or body.
The applicant provided evidence from the platform PayScale that salaries for this occupation in Australia range between $52,000 and $110,000 per annum with an average of $72,340 per annum and from the platform Jora that the average salary for this occupation in Brisbane ranges between $60,000 and $90,000 per annum. The applicant produced job advertisements from SEEK and Indeed with advertised salaries between $60,000 and $85,000 per annum. Ms Gee stated that the applicant had determined the rate at $70,000. The Tribunal is satisfied that the applicant has determined the rate in accordance with the instrument at $70,000 per annum.
For these reasons the requirements of reg 2.72(15)(c) are met.
Regulation 2.72(15)(d) – is the rate, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT?
The TSMIT specified in IMMI 18/033 is $53,900 per annum. The rate of $70,000 as determined by the applicant in accordance with the instrument exceeds the TSMIT.
For these reasons the requirement of reg 2.72(15)(d) is met.
Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the rate for the occupation as determined?
The nominee’s annual earnings will be $73,334.56. These annual earnings are not less than the rate of $70,000 as determined by the applicant.
For these reasons the requirement of reg 2.72(15)(e) is met.
Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?
The nominee’s annual earnings, excluding any non-monetary benefits, of $73,334.56 exceed the TSMIT of $53,900.
For these reasons the requirement of reg 2.72(15)(f) is met.
Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?
The applicant provided evidence that the rate is in accordance with relevant information as defined in the instrument. The rate is in the mid-range of the salaries mentioned in the remuneration surveys and of the advertised salaries mentioned in the job advertisements.
There is no evidence before the Tribunal to indicate that the rate for the occupation as determined 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.
The recent employment agreement provides that the nominee is to have entitlements to annual leave, paid personal/carer’s leave, unpaid personal/carer’s leave and compassionate leave in accordance with the Fair Work Act 2009 (Cth) and to long service leave in accordance with the relevant statute. The applicant is to make superannuation contributions for the nominee in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than earnings) will be less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the location.
For these reasons the requirements of reg 2.72(18)(a) are met.
There is no information before the Tribunal which indicates that the applicant has engaged in discriminatory recruitment practices.
For these reasons the requirements of reg 2.72(18)(b) are met.
LMT
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘LMT 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, LMT 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 LMT condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI LIN 18/036. 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 LMT;
·the LMT 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 LMT 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 nominee is a citizen of the Republic of Kenya. There is no free trade agreement between Australia and Kenya. However, as Australia and Kenya are members of the World Trade Organisation, the two countries are parties to the General Agreement on Trade in Services. The Minister has determined (in instrument LIN 21/075) each obligation of Australia under international law, relating to international trade, under that Agreement as an international trade obligation of Australia. Under that Agreement, it would be inconsistent to require LMT for independent executives and specialists as defined in the Agreement. The nominee does not qualify under those definitions and accordingly the Tribunal finds that it is not inconsistent with any international trade obligation of Australia, determined under instrument LIN 21/075, to require the applicant to satisfy the LMT condition. The Tribunal further finds that the applicant is not exempt from satisfying the LMT condition under the skill and occupational exemption (s 140 GBB) or the major disaster exemption (s 140GBC). The applicant is therefore required to comply with the LMT requirement.
The nomination was lodged on 23 August 2019. The manner in which LMT in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036. It is required:
·That the LMT be undertaken within a period of four months prior to lodgement of the nomination application.
·That the LMT be undertaken in the English language.
·That the position must be advertised in at least two advertisements on a recruitment website or in print or radio media, or, if the sponsor is an accredited sponsor, on the sponsor’s website.
·That the advertisement includes the title or a description of the position, the skills or experience required for the position, the name of the approved sponsor and of the salary for the position (if the intended annual earnings for the position are lower than $96,400).
·That applications or expressions of interest for the position must be accepted for at least four weeks from when the advertisement is first published. And
·That a copy of the advertising material used to advertise the position must accompany the nomination.
Based on the evidence, the Tribunal is satisfied that:
·     The LMT was undertaken for a period of at least 28 days from 7 May 2019.
·     The nominated position was advertised in the English language in at least two advertisements that were commissioned by the applicant on recruitment websites within national reach in Australia.
·     The advertisements included the title and a description of the position, the skills or experience required for the position, the name of the applicant as approved sponsor and the salary for the position.
·     Applications for the advertised position were accepted for at least four weeks from when the advertisement for the position was first published.
For these reasons, the Tribunal is satisfied that the LMT was undertaken in the manner determined in the relevant instrument.
The evidence that must accompany the nomination is also determined in instrument LIN 18/036. The required evidence is a copy of the advertising material used to advertise the position. The records of the Department confirm that the required evidence accompanied the nomination.
The nomination application states that no Australian citizens or Australian permanent residents were made redundant or retrenched from positions in the nominated occupation by the applicant within four months prior to the nomination. There is no evidence before the Tribunal that any such redundancies or retrenchments occurred.
Ms Gee gave evidence at the hearing regarding the recruitment process. She stated that no Australian citizens or Australian permanent residents applied to fill the position. Based on the evidence before the Tribunal, the Tribunal is satisfied that no suitably qualified and experienced Australian citizen or Australian permanent resident or suitably qualified and experienced eligible temporary visa holder is readily available to fill the nominated position.
For these reasons, the LMT 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 nomination application was lodged after 12 August 2018 and therefore the requirements of s 140GB(2)(aa) must be met. The records of the Department confirm that the appropriate nomination training contribution charge was paid by the applicant.

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.
Terrence Baxter
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 3641

23 October 2023

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