Adroitt Group Pty Ltd (Migration)

[2024] AATA 643

Adroitt Group Pty Ltd (Migration) [2024] AATA 643 (13 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Adroitt Group Pty Ltd

REPRESENTATIVE:  Mrs Alexandra Oliver (MARN: 1790427)

CASE NUMBER:  2104464

HOME AFFAIRS REFERENCE(S):          BCC2021/332487

MEMBER:P. Maishman

DATE:13 March 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 13 March 2024 at 3:19pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Advertising Specialist – genuine position – financial capacity to support the position – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 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).

2. The applicant applied for approval on 7 March 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 Advertising Specialist (ANZSCO 225111) is nominated for a Subclass 482 visa in the Short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) because the delegate was not satisfied the position associated with the occupation is genuine.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicant was represented in relation to the review.

6. 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

7. The Tribunal had before it a copy of the Departments file.

8. The applicant gave the Tribunal a copy of the delegates decision with its application for review. The Tribunal received substantially more documents supporting the application than were provided to the Department. 

9. 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

10. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

11. The Tribunal has had regard to the material in the Department’s file and is satisfied that:

    ·the applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa, as per reg 2.73(1);

    ·the nomination was made using the approved form and fee, as per reg 2.73(3), (4) and (5);

    ·the nomination was accompanied by the applicable training contribution charge, as required by reg 2.73(5A) of the Regulations;

    ·the nomination was made in the Short-term stream as the nominated occupation of Advertising Specialist is a short-term specified skilled occupation in the relevant instrument, LIN 19/048, as per reg 2.73(6);

    ·the applicant identified the nominee, Mr Charrua De Almeida, in the nomination, as per reg 2.73(8);

    ·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, as per reg 2.73(9);

    ·the nomination certified that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s 245AR(1) of the Act: reg 2.73(12);

    ·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per reg 2.73(13); and

    ·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for an Advertising Specialist (ANZSCO 225111), that the qualifications and experience of the nominee were commensurate with those specified for an Advertising Specialist (ANZSCO 225111), and that the position is in the applicant’s or an associated entity’s business: reg 2.73(14).

12. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(3) are met.

    No adverse information known to Immigration

13. 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.

14. There is no material before the Tribunal that shows there is adverse information (as defined) known to Immigration about the applicant or a person associated with the applicant.

15. For these reasons the requirements of reg 2.72(4) are met.

    Nominator is a standard business sponsor

16. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

17. The applicant is a standard business sponsor as evidenced by a copy of the Department’s notification of its approval as a standard business sponsor from 19 February 2021 effective until 19 February 2026.

18. For these reasons the requirements of reg 2.72(5) are met.

    Payment of debt mentioned in s 140ZO

19. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

20. There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO.

21. For these reasons the requirements of reg 2.72(5A) are met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

22. 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).

23. The Department’s records show the applicant was previously the holder of a Subclass 462 visa and currently holds a Bridging Visa B since 7 March 2021 pending the outcome of his Subclass 482 visa application.

24. 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

25. 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, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

26. In this case, the relevant instrument is LIN 19/048 which specifies the occupation of Advertising Specialist (ANZSCO 225111) in the Short-term Skilled Occupation List. At the time of lodgement, the nominated occupation was subject to no inapplicability conditions.

27. For these reasons the requirements of reg 2.72(8) are met.

    Position must be genuine and full-time

28. 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.

29. The delegate was not satisfied the business had the capacity to financially support the position. The delegate indicates a 12 month P&L Report - All Branch Report as at 31 December 2020 and The Tax Return for 2020 (unsigned) are not auditable so cannot be verified. The Tribunal is unable to locate these documents in the Departments file.

30. The Tribunal had regard to the applicant’s financial documents that do not appear to have been provided to the Department. The Financial Statements for the 2021 to 2023 financial years indicate the applicant’s turnover increasing from more than $6M to $9M over the period with a residual profit after expenses of nearly $1.2M. The documents indicate the applicant’s assets exceed its liabilities. On the evidence the Tribunal is satisfied the applicant has the financial capacity to pay the nominees salary for the next two years.

31. The applicant’s contract of employment indicates the nominee will be employed on a full time basis of 38 hours per week. The applicant’s annual income statements indicate the nominee has been paid more than the amount contracted in each year of his employment and finds accordingly the nominee is engaged on a full time basis.

32. The applicant made a written submission dated 5 October 2023 outlining its genuine need to employ the nominee. The applicant submits it engaged a marketing specialist years ago and required an advertising specialist to better target the marketing messages. The applicant submits it has nearly doubled it’s turnover during the past four years with significantly increased exposure and vastly improved online sales. The applicant claims the implementation of an advertising specialist has assisted in this growth and it will be launching ongoing advertising campaigns to keep a strong online presence.

33. The Tribunal is satisfied the position associated with the occupation is genuine and a full time position.    

34. For these reasons the requirements of reg 2.72(10) are met.

    Employment under contract

35. 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 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 and reg 2.72(11) must be met.

36. The nominated occupation is not specified in LIN 19/212. The applicant is not an overseas business sponsor. The applicant has provided a copy of the employment contract signed on 2 March 2021 in respect of the nominee.

37. The Tribunal is satisfied the nominee will be engaged as an employee under a written contract of employment by the applicant and the applicant has given the Minister a copy of the contract signed by the employer and nominee.

38. For these reasons the requirements of reg 2.72(11) are met.

    Annual earnings

39. 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 $250,000 as specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than $53,900, the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);

    ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

    ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

40. On the evidence the annual earnings in relation to the occupation will not be at least the specified amount of $250,000 and the requirements of reg 2.72(15) must be met.

41. The Organisation Chart for the applicant confirms there is not an Australian worker performing equivalent work. The Tribunal considered the market salary research survey site PayScale.com which indicates a current salary range of $60,000 to $70,000 per annum. The applicant provided a number of job advertisements indicating an Advertising Specialist in Australia earns an average salary of $50,000 to $55,000 per annum. The Tribunal observes the applicant’s Income Statements for 2021 to 2023 indicate a salary increasing from $58,914 in 2021 to $73,149 in 2023. 

42. The Tribunal is satisfied the salary received by the nominee has been determined in accordance with the instructions in the relevant instrument IMMI18/033 and is not less than the annual earnings that would apply to an equivalent Australian worker.

43. For these reasons the requirements of reg 2.72(15)(c) are met.

44. The rate for the occupation is $55,000 which is not less than the TSMIT amount.

45. For these reasons the requirements of reg 2.72(15)(d) are met.

46. The annual salary offered to the nominee in relation to the occupation is in the range of salaries identified for the position and is not less than the rate for the occupation.

47. For these reasons the requirements of reg 2.72(15)(e) are met.

48. The nominee’s annual earnings will not be less than the TSMIT.

49. For these reasons the requirements of reg 2.72(15)(f) are met.

50. There is no information before the Tribunal that indicates the AMSR is inconsistent with the Australian labour market conditions for the occupation.

51. For these reasons the requirements of reg 2.72(15)(g) are met.

    Employment conditions

52. 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.

53. 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) applies.

54. There is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for an Australian citizen or permanent resident employed in an equivalent position

55. For these reasons the requirements of reg 2.72(18)(a) are met.

56. The is no information before the Tribunal suggesting the applicant has engaged in any discriminatory recruitment practices.

57. For these reasons the requirements of reg 2.72(18)(b) are met.

    Labour Market Testing

58. 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).

59. 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 LIN 18/036. In addition:

    ·the nomination must be accompanied by the evidence specified in the instrument made under s 140GBA(6A) relating to labour market testing;

    ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5);

    ·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.

60. 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 LIN 18/036.

61. The applicant is a citizen of Portugal. There is no evidence before the Tribunal that the labour market testing condition would be inconsistent with an international trade obligation.

62. The nomination application was accompanied by copies of job advertisements published in the English language. The Tribunal is satisfied the position was advertised on the JobActive website and on InDeed and JORA for more than 28 days. The applicant provided a selection of advertisements for similar positions detailing the title and description of the position; the skills and experience required; the sponsor’s name and the salary for the position. The advertisements were published to the respective websites for at least 4 weeks.

63. The Tribunal finds the nominated position was advertised for the prescribed period and in the manner prescribed by LIN 18/036. The applicant declared on the nomination application that a suitable local candidate was not found and noted the other candidates did not have the requisite experience or qualifications to meet the business needs.

1. For these reasons, the labour market testing requirements in s 140GBA are met.

   Nomination training contribution charge

2. 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).

3. The Department acknowledged receipt of the application on 7 March 2021 and identified the application fee and nomination training contribution charge has been paid.

4. The Tribunal is satisfied the training contribution is payable and has been paid.

5. For these reasons, the requirements of s 140GB(2)(aa) are met.

6. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

7. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

   P. Maishman
   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)…