Al Siraat College Inc (Migration)

Al Siraat College Inc (Migration) [2022] AATA 1721 (12 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Al Siraat College Inc
REPRESENTATIVE:  Mr Uday Mishra (MARN: 0215810)
CASE NUMBER:  1825390
HOME AFFAIRS REFERENCE(S):          BCC2018/1787297
MEMBER:Warren Stooke AM
DATE:12 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 12 January 2022 at 8:46am

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – chef – mass production in limited-service restaurant – school and community/function centre – nominee’s qualifications and tasks of position – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(8), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2018 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 23 April 2018. 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 regulation 2.72(8) because the nominated occupation of Chef – ANZSCO Code: 351311 was deemed to be mass production in a factory setting or a limited service restaurant.
The applicant, represented by Mr Fazel Arain, the Principal of Al Siraat College Inc., appeared before the Tribunal on 11 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Faiza Amir Dar, the nominee for the position of Chef – ANZSCI Code: 351311.
The applicant was represented in relation to the review. 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 requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The applicant provided evidence that the Al Siraat College Inc. was first registered with ASIC on 1 March 2008 and assigned ABN: 96 957 841 991.
The applicant provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved by the Department of Home Affairs on 8 May 2018, which is valid to 8 May 2023.
The applicant stated that the college provides education services from foundation to Year 12 students enrolled in 2022. He stated that the school is also a community centre that has two communal kitchens and a mosque.
The applicant provided evidence that the nominee was employed on a contract on 18 March 2018 for a period to 18 March 2022 and that the contract will continue beyond the expiration date for an indefinite period.
The Tribunal was provided with evidence that the nominee satisfied the English language test requirements with a PTE score of 71 that was undertaken on 4 November 2019.
The applicant provided evidence that the nominee received for the position of Chef – ANZSCO 351311 an assessment by TRA on 16 December 2019, as ‘successful’.
The applicant provided evidence of a paid salary of between $65,000 and $70,000 with superannuation paid into the VISSF superannuation fund.
The applicant provided evidence of market testing and that the position of Chef for the school was advertised on 9 January 2018 on Seek and an invoice for $302.50 was provided in evidence. The applicant stated that the school is currently advertising for the appointment of a Head Chef and that the school is not able to secure a suitable applicant.
The applicant provided the Tribunal with an organisation chart prior to hearing and stated that the organisation has 5 to 8 staff engaged in the kitchen depending on the events taking place. He stated that some events will cater for up to 250 people.
The applicant stated the position required an employee that had experience in ordering; planning; preparation of meals; management of costs; supervision of staff; safe handling of food; preparing recipes; keeping the kitchen clean and tidy; and deal with functions, which require the preparation for meals.
The applicant provided the Tribunal with financial information pertaining to the business, as follows:

2019

2020

Total Income

$12,383,759

$20,494,722

Total Expenditure

$16,062,007

$18,574,911

Surplus

$1,321,752

$1,919,811

The applicant provided the Tribunal with evidence that the nominee has the following qualifications:
a.Certificate III in Hospitality (Commercial Cookery) from 4 July 2011 to 20 January 2012;
b.Diploma of Hospitality Management from 4 July 2011 to 21 December 2012;
c.Advanced Diploma of Hospitality awarded on 10 December 2013;
d.Certificate IV in Commercial Cookery awarded on 10 November 2014;
e.Advanced Diploma of Management awarded on 23 September 2014.
The applicant provided evidence that the nominee undertakes the following duties and responsibilities in the position of Chef – ANZSCO Code: 351311:
·   Assisting Head chef with menu planning, ensuring the menu items and ingredients comply with halal requirements. Using authentic recipes for all cuisines around the world to bring awareness to the community.
·   Assisting chef with food costs.
·   Administering all phases of the kitchen operation ensuring the kitchen is run to the business’s operational and financial standards.
·   Ensuring and maintaining all occupational health and safety standards.
·   Food preparation and the provision of a product that endeavours to exceed our Community expectations.
·   Preparing food with dietary needs, specifically with Anaphylactic clients.
·   Stock receivables and ordering. While ordering and receiving, specifically selecting and monitoring with ingredients which comply with halal requirements.
·   Responsible for Balancing registers at the end of the shift on daily basis.
·   Following and monitoring sanitation practices to ensure that employees follow standards and regulations: ensuring all aspects of the Food Safety plan are   followed and all records and procedures are kept up to date and accurate all times.
·   Ensuring all meals are made according to the organisational standards.
·   Ensuring all meals are presented professionally.
·   Working and supervising at various sections; Grill, Hot larder, Cold section, Charcoal grill.
·   Determine production schedules and staff requirements necessary to ensure timely delivery of services.
·   Inspect supplies, equipment and work area to ensure conformance to   established standards.
·   Responsible for regular temperature checks on both equipment and food items as per the temperature control log in the Food Safety Plan.
·   Assist the Head chef in maintenance and calibration of various pieces of kitchen equipment.
·   Welcoming customer feedback and demonstrating flexibility in adjusting meal compositions and sizes according to customer needs and preferences and reporting to head chef.
·   Organising and Running shifts, in the absence of head chef.
·   Guiding, directing and motivating subordinates and where applicable supervising cook and volunteers, so that the kitchen operates efficiently and professionally at all times.
·   Catering the staff and community for the events and functions, which includes menu designing for specific function, preparing, cooking and serving.
Nominee Evidence – Faiza Amir Dar
The nominee provided evidence that she undertakes all the tasks and duties as set out in the descriptor for the occupation of Chef – ANZSCO Code: 3513411 and is employed full-time with the Al Siraat College Inc. as a Chef on a salary of $60,553.54 in the taxation year 2020-21.
The nominee stated that the Cook, Kitchen hand and Waiting staff report to her position and that she is responsible for all the duties of a chef, including cooking; checking of ingredients; complying with halal requirements; cleaning; delegation to staff; baking; and preparing hot meals as per orders.
The nominee stated that she prepares all meals for the school, including pancakes and sausage rolls.
The nominee also stated that she works for functions with a lot of food, including ceremonies, graduations and staff functions.
The nominee stated that she rejected the delegate’s assertion that the role was engaged in ‘limited service’ and ‘mass production’ and that this was not done at the school where all meals are made fresh from the ingredients.
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 r.2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Ms Faiza Amir Dar in the nomination. The nomination includes the location of Al Siraat College Inc., at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Chef (ANZSCO 351311).
For these reasons the requirements of r.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 rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.
For these reasons the requirements of r.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 provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved on 8 May 2018 and is valid until 8 May 2023.
For these reasons the requirements of r.2.72(5) are met
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act.
The Tribunal is satisfied that there is no evidence that the applicant has any outstanding debt under s.140ZO.
For these reasons the requirements of r.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: r.2.72(6)(a) and r.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): r.2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of r.2.72(6) and r.2.72(14) do not apply.
For these reasons the requirements of r.2.72(6) are met.
Further, the Tribunal was provided with evidence that the nominee satisfied the English language test requirements with a PTE score of 71 that was undertaken on 4 November 2019 and thereby the nominee satisfies the language test requirements in the relevant instrument that would apply as a nominee for a Subclass 482 visa in the Medium-term stream, as applicable.
For these reasons the requirements of r.2.72(14) are met.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/051 Specified Occupations. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal is satisfied that IMMI 18/051, in force at the time of application, included the occupation of Chef – ANZSCO Code: 351311 [Item 173].
For these reasons the requirements of r.2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant provided evidence through the recent contract of employment, dated 18 March 2018, that the nominee is employed as a full-time Chef – ANZSCO Code: 351311 on a current salary of $60,553.54 (advised in the ATO Tax Return), plus superannuation that is contributed to VISSF.
The duties performed by the nominee, which were confirmed in evidence are consistent with the tasks and duties provided in ANZSCO Code: 351311.
For these reasons the requirements of r.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 18/051. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)).
In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The applicant provided evidence through the recent contract of employment that the nominee is employed as a full-time Chef – ANZSCO Code: 351311 on a salary of $60,553.54, plus 9.5 per cent superannuation that is contributed to VISSF.
For these reasons the requirements of r.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 r.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: r.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: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.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 r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.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: r.2.72(15)(f) and r.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: r.2.72(15)(g).
The Temporary Skilled Migration Income Threshold (TSMIT) is currently AUD53,900 and the nominee is currently paid $60,553.54 for the nominated occupation of Chef – ANZSCO Code: 351311.
Further, the Tribunal is satisfied that the wage rate for a Chef, as prescribed in the Education Services (Schools) General Staff Award 2010, is less that the salary of $60,553.54 that is paid to the nominee by the applicant.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) does not apply.
For these reasons the requirements of r.2.72(18)(a) and r.2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
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 IMMI: LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in 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 is satisfied that the applicant has undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 that applied at the time of the engagement of the nominee, which was supported by evidence provided to the Tribunal prior to hearing. In this regard, the position of Chef – ANZSCO Code: 351311 was advertised on 9 January 2018 on Seek and the applicant appointed the nominee on 18 March 2018.
For these reasons, the labour market testing 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, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s.140GB(2)(aa).
The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet training Benchmark A or training Benchmark B for the period of engagement of the nominee, as the employment nomination was submitted after 12 August 2018.
As set out in paragraph 44 above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.
Further, the Tribunal accepts that given that Al Siraat College Inc was most recently approved as a standard business sponsor of the nominee on 8 May 2018 and was not required under the legislation in force, at that time, for the following 12 month period, to either demonstrate it had met any specific training commitments or commit to meeting ongoing training obligations in connection with the approval of its sponsorship application. In this regard, post 12 August 2018 it is reasonable to disregard the requirements of the Regulation, as they were and accept that the applicant has met the training obligations.
For these reasons the requirements of s.140GB(2)(aa) are not applicable.
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.
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)…

[2022] AATA 1721

12 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal

2019	2020
Total Income	$12,383,759	$20,494,722
Total Expenditure	$16,062,007	$18,574,911
Surplus	$1,321,752	$1,919,811