Arco Windows Pty Ltd (Migration)

Arco Windows Pty Ltd (Migration) [2022] AATA 1989 (19 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Arco Windows Pty Ltd
REPRESENTATIVE:  Mrs Rachael Gunderson (MARN: 0901595)
CASE NUMBER:  2006564
HOME AFFAIRS REFERENCE(S):          BCC2020/49279
MEMBER:Michelle East
DATE:19 April 2022
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 19 April 2022 at 2:48pm
CATCHWORDS
MIGRATION–nomination – Joiner –applicant has the financial capacity to support the nominated position – a nominee’s position is consistent with the size and scope of the applicant’s business – genuine need to employ a paid employee to work in the position under the nominator’s direct control – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.19
CASES
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 19 March 2020 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 19 February 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium–term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub-regulation 2.72(10) because the delegate was not satisfied that the position associated with the nomination was genuine.
Mr Dumitru on behalf of the applicant appeared before the Tribunal on 17 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the proposed nominee, Mr Maniquoi. The hearing was held during the Covid-19 pandemic and was held by Microsoft Teams video in accordance with the Tribunal’s protocols. The Tribunal checked at the outset of the hearing whether the parties were still happy to proceed this way and they confirmed they were.
The applicant was represented in relation to the review and the Tribunal would like to acknowledge the courteous and professional assistance provided by the representative.
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 r.2.73.
A review of the Departmental file indicated an occupation of ‘Joiner’ was nominated under s.140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: r.2.73(1).
The nomination was made using the approved form and fee: r.2.73(3),(4) and (5).
The nomination was accompanied by any applicable nomination training contribution charge: r.2.73(5A).
The nomination is in the Medium-term stream as the occupation is a medium and long term strategic skills specified occupation – r.2.73(6) – LIN 19/048.
The applicant has identified the nominee in the nomination: r.2.73(8).
The nomination includes the name of the occupation, Joiner and the corresponding 6 digit code – 331213, 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: r.2.73(9).
The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s.245AR(1) of the Act: r.2.73(12).
The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws.
The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO, the qualifications and experience of the nominee are commensurate with those specified for those specified for the occupation in ANZSCO and the position is with the applicant or an associated entity’s business: r.2.73(14).
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.
No information has been provided to the Department or the Tribunal to suggest there is any adverse information known to Immigration about the applicant or a person associated with the applicant.
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 is approved as a standard business sponsor from 16 November 2018 until 16 November 2023. The Tribunal is satisfied on the evidence provided that the applicant is a standard business sponsor.
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.
There is no evidence to suggest the applicant has any outstanding debt under s.140ZO of the Act.
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.
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, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation in this case is ‘Joiner’ and its corresponding 6 digit code is ANZSCO 331213. The occupation is not subject to any inapplicability conditions.
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, 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 been provided with a copy of the employment contract for the nominee and is satisfied that the position is full time.
The delegate was not satisfied that the position associated with the nomination was genuine. In considering this issue, the Tribunal has had regard to the evidence provided with the application, the further documentation provided to the Tribunal and the tasks described in the ANZSCO.
The ANZSCO provides as follows:
UNIT GROUP 3312 CARPENTERS AND JOINERS

CARPENTERS AND JOINERS construct, erect, install, renovate and repair structures and fixtures made of wood, plywood, wallboard and other materials, and cut, shape and fit timber parts to form structures and fittings.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
a.studying drawings and specifications to determine materials required, dimensions and installation procedures
b.ordering and selecting timbers and materials, and preparing layouts
c.cutting materials, and assembling and nailing cut and shaped parts
d.erecting framework and roof framing, laying sub-flooring and floorboards and verifying trueness of structures
e.nailing fascia panels, sheathing roofs, and fitting exterior wall cladding and door and window frames
f.assembling prepared wood to form structures and fittings ready to install
g.cutting wood joints
h.may construct concrete formwork
i.may repair existing fittings
j.may work with plastic laminates, perspex and metals

Occupations:
331211 Carpenter and Joiner
331212 Carpenter
331213 Joiner

331211 CARPENTER AND JOINER

Constructs and installs structures and fixtures of wood, plywood, and wallboard, and cuts, shapes and fits timber parts to form structures and fittings. Registration or licensing may be required.
Skill Level: 3
Specialisation:
Shopfitter

331212 CARPENTER

Constructs, erects, installs, renovates and repairs structures and fixtures of wood, plywood, wallboard and other materials. Registration or licensing may be required.
Skill Level: 3
Specialisations:
Fixing Carpenter
Formwork Carpenter
Prop and Scenery Maker

331213 JOINER

Cuts, shapes and fits timber parts in workshops to form structures and fittings, ready for installation. Registration or licensing may be required.
Skill Level: 3
Specialisations:
Joinery Machinist
Joinery Patternmaker
Joinery Setter-out
The obvious issue initially is that the position of Joiner in this company is not working with timber, but rather a uPVC material. In their submission to the Department the applicant provided:
Arco manufactures and installs custom-build uPVC double-glazed window and door frames for new and existing buildings, typically for external use. The frames are made of uPVC materials, using specialist Murat, Bottero and Best Makina equipment imported from Europe and Deceuninck Winkhaus hardware. The double-glazed glass is fitted during the manufacturing process by glaziers in the workshop before the frames are installed on-site.
uPVC Joiner is not an ANZSCO recognised specialisation of Joiner, however the construction industry recognises the material as an alternative to timber and aluminium window and door frames. We submit that the tasks of the nominated position are substantially consistent with the tasks Joiner, but for the use of uPVC instead of timber.
The Tribunal requested and was provided with, after the hearing, third-party or industry evidence as to whether uPVC window and door frames are a recognised alternative to standard wood and aluminium door and window frames in Australia. The applicant also displayed to the Tribunal samples of their products together with an explanation of how the materials were constructed.
The ANZSCO does say that a joiner may work with plastic laminates, perspex and metals.
Without its own technical knowledge, the Tribunal could not definitively state what uPVC is as a product. However, it is not necessary for it to do so. The Tribunal is not required to have slavish adherence to the ANZSCO and is satisfied that the role of the proposed nominee is clearly within the confines of what is envisaged by the role of a Joiner.
The delegate’s concern in this matter was the financial position of the applicant company and its capacity to support the employment of the proposed nominee for 4 years.
The Tribunal has received updated financial information from the applicant, including but not limited to:
-Financial statements for 2019/2020
-Profit and loss statement only for 2020/2021
-Various BAS statements
On reviewing the documents provided by the applicant, the Tribunal shared the same concerns as the delegate and raised these with the applicant at the hearing.
The Tribunal requested and was provided with further financial statements in draft form for the 2020/2021 financial year.
Of interest to the Tribunal was the balance sheets which record a financial liability in the form of a related third-party loan to Rowa Industry Pty Ltd. A simple internet search revealed the business address of this company as being the same as for the applicant.
The Tribunal questioned Mr Dumitru about the two companies, and he confirmed that they are related entities pursuant to s 50AAA of the Corporations Act 2001. The Tribunal requested ASIC searches for both companies which identified Mr Dumitru as the director for both and the two majority shareholders as being the same for both.
A letter from the companies’ accountant, Mr Fissioli of Thorntons Accountants and Business Advisors, advised:
ROWA Industry Pty Ltd is the importer of glass and double glazing products, materials and machines required to manufacture double glazed windows and doors. It holds the inventory and assets and sells to Arco Windows Pty Ltd.
ARCO Windows Pty Ltd is the trading company, employing staff, selling to customers and operating the trading business.
The capital funding of the companies is provided by the shareholders.
Financial Position
The companies commenced as a start-up business and have realised trading losses for each year, including 2020/21. Given the start-up status, industry and relative infancy of their product in the Australian market, compounded by economic conditions and COVID, it is not unusual for a start up to have losses in its initial years of operation.
The support of the shareholders and major suppliers has been crucial for the company to trade to where it is currently.
The ongoing financial viability of the companies is dependent on a number of factors, including but not limited to the below significant requirements:
1.    Continued financial support of the company shareholders – financial contributions and financial support by the company shareholders for any shortfalls to cover expenses, liabilities and commitments;
2.    Continued favourable trading terms from the major suppliers;
3.    Continued favourable payment arrangements for any outstanding debt;
4.    Achieving ongoing monthly sales targets.
The Tribunal acknowledges the difficulties introducing what is essentially a new product into the marketplace. Australia has not traditionally used double glazing in its building and housing construction, unlike the northern hemisphere, where the benefits of the thermal insulation with double glazing help to regulate extremely cold temperatures.
The Tribunal did, however, have the advantage by conducting the hearing via video conference to look ‘inside’ the applicant’s operations. The applicant has a large warehouse and runs a significant operation. Large-scale capital expenditure has clearly occurred with substantial spending on wages and salaries. The company also advertises heavily, including media ads on morning television.
The Tribunal is satisfied that substantial investment has occurred by the applicant and it is establishing its place in the market. The Tribunal agrees with the company’s accountant that start-up companies such as this are unlikely to be profitable in the short term and do rely on the backing of their investors.
The applicant presents as running a well organised professional company that clearly cares about their product and their employees. Whilst the financial position of the applicant is not beyond doubt, given the substantial investment together with the scale of the operations, the Tribunal is satisfied that it will endeavour to remain viable and indeed successful in the Australian market.
The Tribunal is therefore satisfied that the position associated with the nominated occupation is genuine and that the position is full-time.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and r 2.72(11) must be met.
In this case the nominated occupation is not specified in the relevant instrument and the applicant is not an overseas business sponsor.
The applicant has provided to the Tribunal a signed contract of employment dated 14 February 2020 between the nominee and the applicant. The contract confirms the nominee will be employed by the applicant.
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 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 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).

The income threshold specified in IMMI 18/033 is $250,000. The annualised salary of the nominee is given as $69,160. As the annual earnings in relation to the occupation will not be at least the specified amount the requirements of r 2.72(15) must be met.
Regulation 2.72(15)(c) requires that the annual market salary rate (AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. Section 7 of IMMI 18/033 provides the method for determining the annual market salary rate where an Australian worker is performing equivalent work and section 8 provides for the method where there is not an Australian worker performing equivalent work. The applicant declared in this application that the applicant did not have Australian employee(s) performing the same work as the nominated person. The applicant has provided evidence of the Joinery and Building Trades Award 2010 as well as evidence of job advertisements for a joiner position with comparable experience. The Tribunal is satisfied that the AMSR has been determined by the applicant in accordance with the relevant method.
For these reasons the requirements of reg 2.72(15)(c) are met.
The AMSR excluding any non-monetary benefits is $69,160 which is not less than the TSMIT of $53,900 (IMMI 18/033).
For these reasons the requirements of reg 2.72(15)(d) are met.
The applicant’s employment contract confirms his annual earnings to be $35 per hour exclusive of superannuation which equates to $69,160. The Tribunal is satisfied his annual earnings are not less than the AMSR.
For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings excluding any non-monetary benefits is still more than the TSMIT.
For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information known to the Department or the Tribunal indicating that the AMSR determined is inconsistent with Australian labour market conditions relevant to the occupation.
For these reasons the requirements of reg 2.72(15)(g) are met.
Accordingly, the requirements of r.2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
There is no information known to Immigration and/or the Tribunal that indicates that the employment conditions that apply to the nominee are less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location. For these reasons the requirements of r.2.72(18)(a) are met.
Furthermore, there is no information known to Immigration and/or the Tribunal that indicates the applicant has engaged in discriminatory practices and therefore r.2.72(18)(b) is met.
For these reasons the requirements of reg 2.72(18) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this matter the Tribunal is satisfied that the labour market testing condition applies to the applicant.
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 ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036.
That instrument states that the period within which the labour market testing is required to be undertaken is the period of 4 months ending on the day on which the nomination form in relation to the nominated application is lodged.
The advertisement of the nominated position is required to be in English and in at least two advertisements commissioned or authorised by the sponsor that are:
-On a recruitment website with national reach in Australia; or
-In print media with national reach in Australia; or
-On radio with national reach in Australia; or
-If the sponsor is accredited, on the approved sponsor’s website.
Details of the job title, skills or experience required, name of the sponsor and salary for the position (if lower than $96,400) must be included in the advertisement.
Expressions of interest for the advertised position must be accepted for at least 4 weeks from when the advertisement is first published in any of the above forums.
Evidence provided with the nomination application demonstrates the labour market testing took place within the specified period, was undertaken in the manner set out in the instrument and the nomination was accompanied by the evidence of the labour market testing.
Evidence was also provided of the recruitment process, together with the labour market testing recruitment summary. Oral evidence given at the hearing outlined the proposed nominee’s unique skills with this product, having worked with it previously. As stated, it is a unique product and the proposed nominee’s industry knowledge is of particular value to the applicant.
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 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The Tribunal finds the applicant is liable to pay the charge and provided a copy of its receipt after the hearing as evidence of the charge having been paid.
For these reasons the requirements of s 140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Michelle East
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 1989

19 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction