Adrian O’Hara (Migration)

Adrian O’Hara (Migration) [2024] AATA 193 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Adrian O’Hara
CASE NUMBER:  2107088
HOME AFFAIRS REFERENCE(S):          BCC2021/175529
MEMBER:Warren Stooke AM
DATE:31 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 31 January 2024 at 5:36pm

CATCHWORDS
MIGRATION – approval of a nomination – position of Bush Regeneration Team Leader – labour market testing – standard business sponsor – no evidence of JobActive advertisements – genuine position – financial capacity of the business – actively and lawfully operating a business in Australia – terms and conditions of employment no less favourable – decision under review affirmed
LEGISLATION
Migration Act 1958, s 140, 359, 363
Migration Regulations 1994, rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
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 28 May 2021 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 29 January 2021. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg. 2.72 because subparagraph 140GBA(3)(aa) has not been satisfied and consequently, the applicant does not satisfy the labour market testing condition and section 140GBA of the Migration Act is not satisfied.
On 16 October 2023, the Tribunal pursuant to s359(2) requested information from the applicant by 30 October 2023 pertaining to the application.
As at the 30 October 2023, the applicant had not responded to the Tribunal’s correspondence containing a request for information of 16 October 2023.
The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
On 29 January 2021, the applicant provided the Department with an invoice from Seek.com.au, dated 7 December 2020 and in a separate document provided by the applicant, there is information that appears to be the content of the position advertised.
On 29 January 2021, the applicant provided the Department with the following undated information pertaining to a position of a ‘Bush Regeneration Team Leader’, but does not identify the business seeking to fill the nominated position, for CPR (Cumberland Plain Regeneration), as follows:
“Bush Regenerator Team Leader
CPR (Cumberland Plain Regeneration) -Mulgoa area sites and others
We currently have an opportunity for an experienced and qualified Bush Regenerator Team Leader with Tertiary qualifications to join us at CPR.
The Bush Regenerator Team Leader will be working mostly as a field supervisor at the diverse Bushland locations CPR has been mandated
The starting salary for this casual role is $ $28.86 (Level 4 as per Gardening and Landscaping services award).
The main duties for this role will include;
·Prioritize daily work to be undertaking on the site and report daily on the work done (chemical report also)
·Identify and mitigate any work hazard on the work site
·Direct a bush regenerator team and be accountable for everyone’s work done on site
·Participate in native and invasive plant survey
·Participate in tree planting days
·Participate in Fauna inspection days via tree climbing access
·Participate in weed removal on steep slopes and difficult access via rope access techniques
·Operate chainsaw, brush cutters, augers
·Partake in annual site report writing
Essential qualifications and experience for this role;
·Certificate IV in Bushland Regeneration, Natural Area Restoration, Conservation and Land management
·Relevant Tertiary qualifications
·Class C driver’s License
·Chainsaw experience
·ChemCert accreditation
·Tree Climbing certification
·IRATA certification
How to apply:
Please send resume to Adrian at [email protected]”
The applicant provided the Department with a letter of offer for the nominee to join Cumberland Plain Regeneration on an award rate of $28.86 per hour and that the start date will be dependent on the completion of the VISA application with employment on a casual basis, at that time.
On 16 October 2023, the Tribunal pursuant to s359(2) requested the following information from the applicant by 30 October 2023.
“INVITATION TO PROVIDE INFORMATION – TBW ENTERPRISE PTY LTD
I am writing on instruction from the Member conducting your review, about the
application for review made by Adrian O”Hara ('the applicant' or 'the
nominator') in respect of a decision to refuse a business nomination application under s 140GB of the Migration Act 1958 (the Act).
In order for the Tribunal to approve the business nomination application lodged by the applicant, it must be satisfied that the requirements in reg 2.72 of the Migration
Regulations 1994 (the Regulations) and s 140GB of the Act are met at the time of its
decision, including but not limited to the particular criterion that the delegate found was not met.
The Tribunal now requires updated and current information addressing these
criteria. Accordingly, and without limiting the information that may be given, you or
another person authorised by the applicant are invited to give the following information in writing:
1. Information about company and business registration:
·     for example a current and historical extract from the Australian
Securities and Investment Commission (ASIC) that includes past and
present office holders and shareholders (asic.gov.au); and
·     an extract from the Australian Business Register
(abr.business.gov.au)
2. Information about current approval as a Standard Business Sponsor or being
party to an approved work agreement;
·     for example, a record of approval as a Standard Business Sponsor
that has not lapsed or ceased
3. Information about directly operating an active and lawful business in Australia,
and the businesses’ financial position for at least the last two financial years;
·     for example, tax returns and business activity statements (BAS) that
have been lodged with the Australian Taxation Office
·     financial statements prepared by an accountant/ financial advisor for
the two most recently completed financial years that include a
detailed profit and loss statement and balance sheet
4. Information about the business’s organisational structure and where the position
associated with the nominated occupation sits in relation to that structure;
·     for example an organisational structure chart that includes all of the
current and proposed employees, their position title/duties and lines
of reporting, whether they are full-time or part-time and whether they
are an Australian citizen, permanent resident or visa holder
5. Information about the roles and duties of the nominated occupation and how
they correspond to the nominated occupation’s position description in ANZSCO;
·     for example, a description of duties and responsibilities for
nominated occupation and how they fit within the structure and
needs of the business
·     a comparison of how the roles and duties of the nominated
occupation match or are different from the occupation description in
ANZSCO (see and type
the nominated occupation’s 6 digit ANZSCO code number into the
‘Search’ function)
6. If the nominated occupation is subject to an inapplicability condition, information
about why the condition does not apply in the circumstances of your case.
·     The instrument specifying the occupations, in force at the time the
nomination application is made, provides the relevant inapplicability
conditions that the nominated occupation may be subject to
7. Information about the annual market salary rate for the nominated occupation,
the nominee’s annual earnings and the terms and conditions of employment,
including whether or not they are more favourable than those provided to an
Australian citizen or permanent resident performing equivalent work in the same
location;
·     The annual market salary rate for the nominated occupation must be
determined in accordance with the method specified in the relevant
instrument. Relevant information to give may include, for example,
an employment contract or letter of offer that complies with relevant
awards for the nominated occupation (if any) and also any salary
surveys, advertisements, payroll reports and PAYG statements that
relate to equivalent work in the same location
8. Information about the current and previous visa status of the nominee, and, if
applicable, their English language ability;
·     for example, the type of visas they held in Australia and when, and
copies of any English language test results that the nominee has
undertaken
9. Information about whether you satisfied the labour market testing condition or
information that you are an exempt applicant.
·     for example, information that was provided with the nomination about
any redundancies or retrenchments of an Australian citizen or
permanent resident worker in the four months before lodgement of
the nomination application, information that was provided with the
nomination about the advertising conducted (and any fees paid)
within the period immediately before lodgement of the nomination
application, or information about why the labour market testing
condition does not apply in your case, for example, if it would be
inconsistent with an international trade obligation of Australia as set
out in a legislative instrument Information that you give the Tribunal should be up to date and address all the relevant criteria.
This information, in writing, should be received by 30 October 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you or another person authorised by the applicant cannot provide the information by 30 October 2023, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time
request is made, it must be received by us before 30 October 2023 and it must state
the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may
make a decision on the review without taking any further action to obtain the
information. The applicant will also lose any entitlement it might otherwise have
had under the Migration Act to appear before us to give evidence and present
arguments.
Alternatively, if the applicant’s circumstances have changed and the applicant no
longer wishes to proceed with this application for review, please complete a withdrawal form by clicking on the link directly below.
Click here to access the online Withdrawal form
If you have any questions, please email [email protected], or contact me on the
number listed below, or telephone our national enquiry line on 1800 228 333. For
language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
As at the time of decision, the applicant has not responded to the Tribunal’s correspondence of 16 October 2023.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
In the absence of a response to the Tribunal’s correspondence of 16 October 2023, the Tribunal has insufficient evidence that the applicant has an approved standard business sponsorship.
For these reasons the requirements of reg 2.72(5) are not 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, that is, IMMI 19/048 of the Register of Instruments: Business Visas. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal is not satisfied that the nominated position has been identified with a 6-digit ANZSCO Code for the occupation, as required in IMMI 19/048 (occupation ANZSCO Code).
In this regard, there is insufficient information in the absence of a response to the Tribunal’s request for information of 16 October 2021, that the intended position performs the duties set out in a specific ANZSCO Description of tasks.
For these reasons the requirements of reg 2.72(8) are not 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 considered the absence of a nominated ANZSCO description for the intended job position to be nominated for the business, together with the context of the business setting.
Further, the Tribunal finds that with the lack of information pertaining to the financial profile of the business, its staffing structure, the primary activities of the business, and the scale of those activities that a genuine full-time position is to be provided, particularly given that the contract of employment of 25 January 2021 is on an hourly casual basis. The Tribunal finds that the applicant has not provided the Tribunal with sufficient information, beyond the initial application when the nomination was lodged with the Department. As such, the Tribunal is satisfied that the applicant has not provided an organisation structure that includes individual staffing positions and there is insufficient financial information to support the financial capacity of the business to employ the applicant for a defined period of time, beyond the scarce details in the contract of employment on a casual basis contained in the correspondence of 25 January 2021 that included an hourly rate of $28.86.
In the absence of a response to the Tribunal’s correspondence of 16 October 2023, the Tribunal has insufficient evidence that the applicant has a genuine and full-time position for a 6-digit compliant nominated position.
The Tribunal notes that the applicant included a position description in the position advertised on Seek.com.au and the contract of employment of 25 January 2021, which does not align with a recognised ANZSCO Code.
Further, the applicant has not provided evidence of a detailed organisational structure, as to how the position fits into the business overall.
For these reasons the requirements of reg 2.72(10) are not 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 has not provided sufficient information and particularly a response to the Tribunal’s correspondence of 16 October 2023 that the business is lawfully operating in Australia. As such, the Tribunal is satisfied that reg 2.72(18)(b) does apply.
For these reasons the requirements of reg 2.72(18)(b) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
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 instrument LIN18/036: Period, manner and evidence of labour market testing. 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.
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 the Minister has determined it would be inconsistent with a specified international trade obligation.

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 instrument IMMI: LIN – 18/036 that includes the following requirements:
“8        The advertisement of a nominated position
(1)    This section is made under subsection 140GBA(5) of the Act.
Language
(2)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.
Method
(3)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:
(a)   on a recruitment website with national reach in Australia; or
(b)   in print media with national reach in Australia; or
(c)   on radio with national reach in Australia; or
(d)   if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.
(4)   The following details of the position must all be included in the advertisement:
(a)   the title or a description of the position;
(b)   the skills or experience required for the position;
(c)    the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;
(d)   the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.
Duration
(5)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a)   print media;
(b)   radio;
(c)   website.”
The Tribunal notes that the relevant legislative instrument states that, for all applications lodged after 1 October 2020, a nominated position must be advertised on the JobActive website, in addition to at least two advertisements in media with national reach (recruitment websites, print, radio, or in the case of an accredited sponsor, their own website).
While the Tribunal acknowledges that the applicant appears to have undertaken recruitment through the medium of seek.com.au in relation to a descriptor that does not identify the assigned ANZSCO Code, the applicant has not provided any evidence that the position was advertised on the JobActive website.
Furthermore, the applicant has not provided evidence of a third advertisement in a medium with national reach.
Overall, the Tribunal is not satisfied that the labour market testing was undertaken in the required manner. Therefore, subparagraph 140GBA(3)(aa) has not been satisfied and consequently, the applicant does not satisfy the labour market testing condition and section 140GBA of the Migration Act is not satisfied.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Warren Stooke AM
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 193

31 January 2024

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