Austonia Trades Pty Ltd (Migration)

Austonia Trades Pty Ltd (Migration) [2023] AATA 2851 (1 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Austonia Trades Pty Ltd
REPRESENTATIVE:  Mr Daniel Mattheus Estrin
CASE NUMBER:  2103177
HOME AFFAIRS REFERENCE(S):          BCC2019/6493435
MEMBER:C. Packer
DATE:1 August 2023
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 1 August 2023 at 3.49pm

CATCHWORDS
MIGRATION–nomination – Medium-term stream – no adverse information– applicant is the standard business sponsor – genuine need to employ a paid employee to work in the position– position associated with the nominated occupation is genuine and full time –no less favourable terms and condition of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73
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 22 February 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 5 December 2019. 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 r.2.72(10((a) because the delegate was not satisfied ‘that there is sufficient evidence to support the claim that the position in the nominated occupation is genuine. When considered in the context of the current operating environment.’
In light of the volume of material before the Tribunal, including documents and information provided to it on 9 December 2022, the Tribunal has proceeded to make a decision without proceeding to a hearing. The applicant was represented in relation to the review.
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 Tribunal finds:
·The applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);
·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);
·The nomination is in the medium-term stream as the occupation is a medium and long term strategic skills specified occupation: reg 2.73(6);
·The applicant has identified the nominee Rait Ernits, in the nomination: reg 2.73(8);
·The nomination includes the name of the occupation and the corresponding 6 digit code (Carpenter 331212), the location/s at which the occupation will be carried out (East Perth 6004), the proposed period of stay for a visa granted on the basis of the nomination (4 years), the annual turnover for the nomination: reg 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: reg 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: reg 2.73(13);
·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and that the position is in the person’s business: reg 2.73(14).
For these reasons the requirements of reg 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 regs 1.13A and 1.13B.
Departmental systems show that in December 2022 the Department commenced 457 monitoring the applicant. Requests for information had been sent to the applicant on 5 January 2023 and 13 February 2023. However, there is no indication that the monitoring led to adverse findings or consequences concerning the applicant. Additionally, from April to June 2023 the applicant is recorded as being a proposer for nominees for Temporary Activity visa (subclass 408) visas that were subsequently granted.
Based on the material before it, the Tribunal is satisfied there is no adverse information known to Immigration about the applicant or a person associated with the applicant, within the terms of regs 1.13A and 1.13B. 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 Department approved an SBS on 23 March 2021 valid to 23 March 2026. 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 information before the Tribunal that shows the applicant owes a debt mentioned in s 140ZO. For these reasons the requirements of reg 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. 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, IMMI 19/048. The nominated occupation concerns a Carpenter 331212. This corresponds to an occupation and 6-digit code specified in the instrument in the medium-term stream. 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.
An employment contract with the nominee was signed 5 December 2019. The contract was stated to commence upon ‘grant of subclass 482 visa’ and concerned the full-time position of carpenter in WA for a salary of $70,000. A ‘Duties and responsibilities of Carpenter’ sheet lists the duties and responsibilities of the position of carpenter, that corresponds with the ANZSCO dictionary.
A submission of 8 December 2022 by the Managing Director states in part:
Genuine Need for the Nominated Position
The nominated position of Carpenter is a key role within the Austonia Trades Pty Ltd organisational structure with the main purpose of the position is to oversee construction and interpret job specifications and construct, erect, install, renovate and repair structures and fixtures of wood, plywood, wallboard and other materials.
It is the responsibility of the Carpenter to:
• Correctly interpret blueprints, specifications, and project plans to meet clients’ needs
• Responsible for the installation of structures and fixtures, including windows and molding
• Create a program/schedule for the use of materials and associated equipment for carpentry work
• Provide support to concrete foreman with project layout and elevation shooting
• Take the measurement and cut materials to build forms for pouring concrete
• Responsible for operating electrical, air-powered, and regular hand tools during projects
• Assembly, sorting and repairing formwork, falsework, shoring and access equipment.
• Carrying out duties which include erecting panels and accessories that mould to form a desired shape with concrete such as slabs, support beams, columns and walls.
• Bean and deck assembly, cutting and fitting ply sheets, cleaning and installing chamfers. Levelling and finishing beams.
With expansion projects like the Nickel mine Carpenters are required to build new infrastructure; this includes roads, office blocks, crushers, conveyor lines, employee accommodation. Expansion requires new footings for mining infrastructure. All of this development requires carpenters to frame the basic work before the next wave of trades comes through. Roads need to be dug out and framed by formwork carpenters so that tar can
be poured, and concrete edging laid; foundations need to be established for demountable buildings, and concrete footings for permanent structures must be established before concrete pads can be poured. The type of onsite accommodations varies, particularly in the northwest; the building codes are different, and cyclone rated. Carpenters are required to hang walls, roofs, lay floors, hang doors, and undertakes finishes; all aspects of first and second fixing to prescribed building code. Carpenters are also required for ongoing repairs and maintenance.
Similarly, with the solar and Wind farms, the project cycles through the different construction phases (civil works, foundations, assembly, electrical assembly, cabling, commissioning). The roads have to be laid, the foundation for the solar panels built, the foundations need to be concreted in, so a carpenter is required to build framework before the concrete is poured, etc.
It is critical for our business, that we have a highly experienced Carpenter who can lead and mentor a team of workers, and develop the worker’s skills, their ability to identify issues and recommend solutions; and ensure that all workers adhere to building codes and regulations as well as job site safety rules and regulations The nominee, Rait Ernits is a highly experienced Carpenter, and he brings not only a wealth of knowledge and skill set which is vital to our operations, but most importantly an appreciation for taking the time to mentor
and support our workers. We believe that without the competent services of Mr Ernits, we would find it difficult to successfully operate our business and fulfill our contractual obligations with our partnering businesses.
The nominee, Mr Ernits also holds particular value to the business because he has years of experience in working in remote regional areas of Australia and he has a willingness to continue to do so and will relocate to whatever location is required.
…
Financial viability of Austonia Trades Pty Ltd
Austonia Trades Pty Ltd is profitable business which has experienced significant growth over the past few years, as evidenced by our Financial Statements and Business Activity Statements. We expect this projection of growth to continue as the industries we operate in (Mining, Civil, Renewables and Construction) is booming and there are not enough established companies to do the work on the projects comping up every year. Additionally, we
are also continually looking for new business and ways to expand our services.
That said, the construction industry is always hectic, with so much money flowing in and out among client, contractor, and supply chain. Issues with positive cash flow can arise because outlays can be huge, as contractors need enough money coming in, to pay suppliers and workers/subcontractors for the day-to-day running of projects. Like many other construction businesses, Austonia Trades Pty Ltd uses invoice-based financing, lines of credit to ensure positive cash flow and to cover any operating cost shortfalls.
One of our largest expenses is payroll. We are acutely aware that to attract highly qualified and experienced workers and retain such workers, we need to keep our salaries competitive and in line with the market. Currently we employ 11 full time staff in various professional, administration and trade roles and approximately 50 casual skilled workers and around 40 unskilled workers.
Austonia Trades Pty Ltd assures the AAT Member, that retaining the nominated position and nominee, would not take away opportunities for Australian Citizens or Permanent residence. Rather it increases those opportunities because our strong workforce is allowing us to take on more work, which leads to hiring more skilled, hardworking Australians for the current and future projects.
An organisation chart shows the business owner as manager; HSEQ officer; Accounts and Administration officers (2); Senior Tradesmen (4), Mechanical crew lead; Welding and Fabrication crew lead; Chippy crew lead (the nominee); Casual crew unskilled (not named or listed); Casual Skilled crews (not named or listed).
Financial information concerning the business provided includes:
·Profit and loss statement 2022
·Financial Statements for 2020 and 2021
·Business Activity Statements lodged with the ATO between July 2020 and Sep 2022
·Selection of Business Payroll Tax Reports 2020 (NSW Revenue), and 2020 to 2021 (WA)
·Payroll Summary, 11/6/2022 to 24/6/2022 (showing large total)
·Payroll Summary, 1/7/2022 to 8/12/2022 (showing very large total)
·Current Business Premises Lease Agreement, at Balcatta WA
Information concerning the nominee provided includes:
·Payroll Summary, 1/7/2021 to 30/6/2022 (wages $129,363)
·Payslips 12/10/2022 to 25/10/2022 and 26/10/2022 to 8/11/2022 (showing base hourly rate of $50/hour)
·Payslips showing Super payments
In sum, based on the material before it, the Tribunal is satisfied that the nominee has been working as a carpenter, and for example received payments in the 2022fy of $129,363. The Tribunal is satisfied the position would be a full-time carpenter, pursuant to a contract of employment, for $70,000pa. The Tribunal is satisfied the position is genuine. 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.
An employment contract with the nominee was signed 5 December 2019. The contract was stated to commence upon ‘grant of subclass 482 visa’ and concerned the full-time position of carpenter in WA for a salary of $70,000. A ‘Duties and responsibilities of carpenter’ sheet lists the duties and responsibilities of the position of carpenter, that corresponds with the ANZSCO dictionary.
The Tribunal is satisfied the nominee would be engaged as an employee under a written contract of employment by the applicant. For these reasons the requirements of reg 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).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
In the application the applicant sought to nominate the nominee on a wage of $70,000. A signed Employment Contract dated 5 December 2019 was stated to commence upon ‘grant of subclass 482 visa’ and concerned the full-time position of carpenter in WA for a salary of $70,000.
However, the nominee’s Payroll Summary for the 2022fy shows payments of $129,363 which is significantly greater than $70,000 as it includes overtime. Payslips 12/10/2022 to 25/10/2022 and 26/10/2022 to 8/11/2022 now show a base hourly rate of $50/hour that equates to $98,800pa.
In a submission of 8 December 2022 the Director states that the ‘base salary for the nominated position is $98,800 per annum. This salary is equal to the annual market salary rate for a Carpenter as demonstrated by both external job advertisements for equivalent positions.’
The applicant submits Payscale shows in Australia a carpenter gets $62,461 average base salary. The applicant submits that the offered salary of $70,000pa is equal to the annual market salary rate for a carpenter as demonstrated by external job advertisements for equivalent positions.

The Tribunal is satisfied the nominee would be employed on a contract with a guaranteed salary of $70,000pa.
The TSMIT at the time was $53,900. The Tribunal accepts the applicant determined the annual market salary rate for the nominated occupation in accordance with the relevant instrument. For these reasons the requirements of reg 2.72(15)(c) are met.
The rate, excluding any non-monetary benefits, for the occupation is not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(d) are met.
The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) 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.
Based on the material before the Tribunal, there is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.
Based on the material before the Tribunal, there is no information that indicates the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 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 ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 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 IMMI 18/036.
A submission of 8 December 2022 by the Managing Director states in part:
No Suitable Local Employees Available
There has been skill shortage issue in Australia for some years now, particularly in the construction, building, mining and fabrication industry. This has evolved for several reasons.
Firstly, those Australians who do have the relevant qualifications and or experience required for this position are unsuitable, as they are already employed or are seeking employment within larger companies such as BHP, Rio Tinto, Fortescue Metals and Newcrest Mining , which makes it difficult for other mid-tier support companies, such as our business to compete or even find workers to fill positions. While we offer a market salary, however new employees don’t last, particularly new Australian employees. Many of our new recruits are looking to gain
the requisite experience, and then move to the larger mining companies who pay better and have more generous benefits, and to be candid, offer a different career pathway than Austonia Trades can offer.
Secondly, with the Covid pandemic and Australia’s internal and international borders closures, sourcing suitably qualified Australian Welders was extremely difficult. Currently in the mining and resources sector there is the unusual situation where shutdown work will remain unseasonably high in the short term to make up for lost time over the past few years, increasing the need for Welders and in parallel, operational and construction work is
projected to grow strongly over the next two years on the back of strong commodity prices. Meanwhile, there is hot competition for skilled and experienced workers across Australia from a variety of industries which includes significant government-backed infrastructure and construction projects under way around the country.
While our business is committed to employing Australian skilled workers, our recruitment efforts have produced the desired outcome. Over the past four years, we regularly conducted advertising for Welders, Carpenters, and Mechanical Fitters. We seek applicants to work in roles servicing the mining and construction sectors and so we actively look for applicants with experience closely aligned with the requirements of the role that we are trying to fill.
Unfortunately, many of our vacancies have remained unfilled as no suitable applicants were identified, largely due to:
•The low numbers of qualified applicants
•Qualified applicants lacking the specialist experience required and the additional tickets required to operate in a workplace.
•Applicants having higher salary expectations.
•Applicants who were not prepared to submit to drug and alcohol testing or could not provide a clean National Police Clearance.
•Applicants not holding a valid driver license.
•Applicants living overseas.
To highlight our difficulty in sourcing suitable personnel within the industry, at the time of writing this letter, there are over 8,462 Carpenter vacancies advertised on Seek, referencing the skill shortage in Australia over all industries.
The nominated position was advertised as follows:
Source   Commencement date    Expiry date
Indeed   10 Oct 2019               09 Nov 2019
Seek   14 Aug 2019              12 Aug 2019
Adzuna   13 Sep 2022              11 Oct 2022
Seek   13 Sep 2022              11 Oct 2022
Workforce Australia     13 Sep 2022              11 Oct 2022
As such, it is abundantly clear that there are no suitable Australians available for employment as a full-time Carpenter for our business in 2019 or at this present time.
Our business has had no choice but to source and fill the vacancies with overseas skilled workers residing in Australia. It is essential that we employ an appropriately qualified and experienced person, as not continuing to employ such a person in this position would detrimentally affect the core functions of the business.
The nomination was made 5 December 2019 and the evidence of advertising provided shows advertising for a carpenter in English, in Indeed and Seek, in a form that satisfies the requirements of the relevant instrument. The delegate accepted the labour market testing was compliant. The applicant also tested the market in 2022 ostensibly for the purposes of the review.
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). Departmental systems show the charge was paid. For these reasons the requirements of s 140GB(2)(aa) are met.
Conclusion
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.
C. Packer
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)…

[2023] AATA 2851

1 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction