Auko Construction Pty Ltd (Migration)

Auko Construction Pty Ltd (Migration) [2022] AATA 1098 (27 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Auko Construction Pty Ltd
REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)
CASE NUMBER:  1909634
HOME AFFAIRS REFERENCE(S):          BCC2019/1548101
MEMBER:K. Chapman
DATE:27 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 27 April 2022 at 3:07pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – construction project manager – genuine position – comparison of nominated position and ANZSCO occupation description – nominee’s performance in role – reduced but continued operations during COVID-19 restrictions and new project pending – labour market testing not required because of free trade agreement – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), rr 2.72(10)(a). 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 8 April 2019, to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (Cth) (‘the Act’) and reg 2.72 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
The applicant, Auko Construction Pty Ltd, applied for approval on 27 March 2019. The applicant nominated Mr Minsoo Lee (‘the nominee’) in the occupation of Construction Project Manager, which is coded as number 133111 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant operates a construction firm in Brisbane, focussed on residential development.
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 failed to satisfy r.2.72(10)(a), due to a lack of satisfaction that the position associated with the nominated occupation is genuine. On 17 April 2019, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
The applicant, through its Director Mr Jae Deuk Kim, appeared by telephone before the Tribunal on 8 April 2022 to give evidence and present arguments. Mr Kim, on behalf of the applicant, confirmed he was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. Mr Kim confirmed he understood the interpreting service.
The applicant has a registered migration agent (‘the representative’) on the record. She did not attend the review hearing. During the review hearing, the Tribunal canvassed with Mr Kim the need to provide further evidence addressing all the legal criteria relevant to nomination. Mr Kim requested time to provide post-hearing material. The Tribunal duly granted time until 21 April 2022. On 20 and 21 April 2022, the applicant (through the representative) submitted, inter alia, financial records, a Development Engagement Agreement regarding a future construction project, an Accountant letter, taxation records, pay slips, the employment contract pertaining to the nominee and its notice of approval as a standard business sponsor. All material received has been duly considered by the Tribunal.
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 lodged their application for nomination identifying the occupation of Construction Project Manager (ANZSCO 133111) to be performed by Mr Minsoo Lee, who is an applicant for a Subclass 482 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form with the necessary declarations, identifies a location in the Brisbane area where the occupation will be carried out, was accompanied by the prescribed fee (including the nomination training contribution charge) and included the relevant written certifications required pursuant to r.2.73. Further, the Tribunal is satisfied that the applicant is a standard business sponsor and the nomination correctly identifies the six digit ANZSCO code for an occupation, contained in a legislative instrument, as an approved occupation for the purpose of a Subclass 482 visa in the Medium-term stream.
For these reasons, the requirements of reg 2.72(3) are satisfied.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.
For these reasons, the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant submitted a copy of their Sponsorship Approval Notice confirming they are an approved standard business sponsor for the period 4 February 2019 to 4 February 2024.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s.140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act.
There is no evidence before the Tribunal of any debt relevant to s.140ZO of the Act.
For these reasons the requirements of reg 2.72(5A) are satisfied.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7); and
·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).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) 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 be applicable to the nominee in accordance with this instrument.
The applicant nominated the occupation of Construction Project Manager (ANZSCO 133111). This occupation is not subject to an inapplicability condition (or ‘caveat’). Following careful consideration of the evidence, the Tribunal is satisfied that the nominated occupation is duly listed in instrument LIN 19/048 and is applicable to the nominee, who is actually employed as a Construction Project Manager (ANZSCO 133111) by the applicant.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, 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.
At hearing, Mr Kim explained the context of the nominated full time position, its duties and its vital importance to the operations of the applicant. The applicant undertakes residential development activities. Throughout 2019, the applicant was engaged to undertake projects including a residential townhouse development to the south of Brisbane. The nominee was critical to this project, in his role as the only Construction Project Manager, according to Mr Kim. He also explained the nominee’s duties in a manner consistent with the ANZSCO description for the nominated occupation.
Mr Kim informed the Tribunal that the applicant’s financial position was very strong until early 2020, then the COVID-19 pandemic struck Australia. This inhibited activity on most residential development projects. Mr Kim outlined that the applicant’s financial position suffered as a result of the pandemic, however it managed to keep trading by reorientating to conduct renovation projects. At all times, according to Mr Kim, the nominee was paid his annual salary of $81,120 plus superannuation (submitted payslips and taxation records corroborate his account).
Mr Kim outlined that since the COVID-19 restrictions in Queensland have been wound back, the applicant is able to progress new construction projects. He told the Tribunal that the applicant was about to sign a contract for work on a new residential project, whereby the nominee’s skills are vital to proceed. Following the hearing, a copy of the signed Development Engagement Agreement was submitted to the Tribunal. It corroborates Mr Kim’s account of future work for the applicant. An Accountant’s letter and financial reports were also submitted to the Tribunal and confirm the applicant has the financial capacity to maintain the nominated position. Whilst the Tribunal notes the applicant’s financial position is weaker post COVID than pre, and the situation is finely balanced, it is satisfied that the business is recovering well with restrictions now dramatically curtailed.
On balance, the Tribunal is satisfied that the nominee will perform the full time role of a Construction Project Manager (ANZSCO 133111) as defined in the ANZSCO. Following careful consideration of the evidence, the Tribunal is satisfied the nominee’s position is consistent with the size and scope of the applicant’s business, and that he is legitimately employed to fill a position that cannot be filled from the domestic labour market. Of note, the Tribunal accepts the applicant requires the services of the nominee, so that a new residential development can proceed. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Construction Project Manager (ANZSCO 133111) is genuine and full time.
For these reasons, the requirements of reg 2.72(10) are satisfied by the applicant.
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 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)).
It is common ground the applicant is not an overseas business sponsor and the requirements of reg 2.72(11) must be satisfied. Nor is the nominated occupation exempt, by way of Ministerial instrument, from the requirements of r.2.72(11). Therefore, the applicant (or an associated entity) must employ the nominee, engage them pursuant to a written contract of employment, and provide a copy of this document to satisfy the relevant requirements.
The applicant submitted a copy of the nominee’s employment contract dated 6 February 2019. The Tribunal is satisfied the nominee is employed on a full time basis pursuant to its terms, including an annual salary of $81,120 plus superannuation.
For these reasons the requirements of reg 2.72(11) are satisfied.
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).
As is relevant to the circumstances of the present matter, the applicant must satisfy the requirements of reg 2.72(15). The annual earnings of the nominee are currently $81,120, as reflected in the submitted employment contract dated 6 February 2019, payslips, taxation records and the evidence of Mr Kim at hearing. It is common ground this remuneration exceeds the TSMIT. Additionally, the evidence of Mr Kim confirms there is no industrial instrument relevant to the nominated occupation, nor is there an Australian worker performing equivalent work to the nominee in the applicant’s workplace. The submitted market salary material confirms the remuneration of the nominee is within the appropriate range, in the view of the Tribunal.
Having regard to the evidence, the Tribunal is satisfied that the applicant has determined the remuneration of the nominee in the correct fashion and that such remuneration is appropriate in all the circumstances.
For these reasons, the relevant requirements of reg 2.72(15) are satisfied by the applicant.
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 therefore reg 2.72(18)(b) is applicable.
There is no information before the Tribunal, or in the Department file, to suggest the employment conditions of 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. Additionally, there is no information to suggest the applicant has engaged in any discriminatory recruitment practices.
For these reasons, the requirements of reg 2.72(18) are satisfied by the applicant.
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.
The Tribunal notes that the nominee is a citizen of South Korea. Pursuant to instrument LIN 21/075, labour market testing is inconsistent with the Korea-Australia Free Trade Agreement (KAFTA).
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
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).
It is common ground that the applicant is liable to pay the nomination training contribution charge. The submitted receipt dated 27 March 2019 confirms the applicant duly paid this charge.
Therefore, the requirements of s.140GB(2)(aa) are satisfied by the applicant.
For the reasons outlined 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.
K. Chapman
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 1098

27 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction