Aventedge Pty Ltd (Migration)

Aventedge Pty Ltd (Migration) [2022] AATA 812 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Aventedge Pty Ltd
REPRESENTATIVE:  Ms Rachel Anne Magill (MARN: 0601736)
CASE NUMBER:  1902384
HOME AFFAIRS REFERENCE(S):          BCC2018/5212286
MEMBER:Stephen Witts
DATE:7 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 07 April 2022 at 11:39am
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – operations resumed after COVID-19 restrictions, voluntary administration and debt restructure – nominee’s tasks, specialised knowledge and work in role for five years – labour market testing – no other suitable candidates found – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
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 14 January 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 applied for approval on 22 November 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the short-term stream to work in the nominated occupation of Technical Sales Representative ANZSCO code 225499.
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 nominated occupation was genuine.
The applicant, Mr Stansmore from Aventedge Pty Ltd, appeared before the Tribunal on 7 April 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Mr Mevan Panapage Don.
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 substituted 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 Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that it was provided a copy of the delegate’s decision record dated 14 January 2019 where it was contended that the application was lodged to facilitate the grant of a visa to the nominee and not to fill a business need. It was also contended that the applicant had not provided sufficient financial information, that it had previously lodged an application for the nominee in 2018, that the nominee has been in Australia on multiple visa subclasses for some years and that the nomination may exist for the purpose of securing a migration outcome for the nominee. It was also noted that the nominee has been working (as of date of decision) as an inbound sales representative since July 2017.
The Tribunal also notes that a submission from the applicant’s representative was provided dated 27 January 2022. In this submission was included company and financial material, an organisation chart, an employment contract with position descriptions, a comparison with ANZSCO classifications, advertising material, and other material. In this submission it was stated that the relevant ANZSCO classification includes the operational grouping of sales representative (educational products and services) which aligns with the businesses offering industry and business workshops and training events and that the position did have caveats including on annual earnings of less than $65,000 and that it excluded low skill tasks such as those based in a front line retail setting, or based in a call centre and do not require a significant technical knowledge of products predominantly involving the selling of educational courses to individual students.
The Tribunal notes that the contract information included a salary of $65,000 plus superannuation therefore representing a total remuneration of $71,500. The Tribunal also notes that payslips were included, including for an equivalent Australian employee.
The Tribunal notes that advertising material was provided stating that an advertisement for the nominated position was posted on LinkedIn in July 2018 until August 2018 and then again from September 2018 until October 2018 and received five applications, but none had sufficient experience in the technical or conference and training sector.
The Tribunal notes that it was stated that the nominator’s business provides training and workshops, and that the nominee’s role consists of providing sales service in support of the business and industry events, training and workshops, and that the role is not in a retail setting, call centre, or relates to content without a technical basis or providing educational courses to individual students.
The Tribunal notes in the ASIC material provided it was stated the ABN was 35615522168 and the directors of the business are Andrew Worner and Julian Stansmore, and that the previous directors were Irene Stansmore and Priscilla Champaneri. External administrators were also listed.
The Tribunal notes that financial material was provided indicating that to end of financial year June 2021 the business had a gross profit from trading of approximately $1.8 million and to 9 December 2020 it had gross profit from trading of approximately $3 million. It is noted that the total salaries and wages and other payments in the July 2021 period was approximately $170,000.
The Tribunal notes that a report to creditors was also provided referring to an appointment of trustees to the business on 14 January 2021. A number of creditors were referred to including the ATO with outstanding debts of approximately $880,000.
The Tribunal also notes a submission from the applicant’s representative dated 1 April 2022 stating that the nominator is a commercial conference company that develops and runs its own events and not an event management company that exclusively organises events on behalf of third parties. It was stated that the business runs conferences, seminars and workshops providing professional development across some states in Australia on the east coast and also in New Zealand, the United Kingdom and Singapore and that it organises events on behalf of third parties such as industry associations and other organisations.
It was also stated that the company previously traded as a profitable business however it was severely affected by the Covid pandemic in 2020 and therefore had to cease organising events until October of that year and reorganise the organisation structure and reduce staff numbers from 35 to 17. It was further stated that even after these changes a further restructure of company debts was necessary and that it went into voluntary administration on 14 December 2020. It was stated that it emerged from voluntary administration in January 2021 and that it has resumed trading and that the future of the business is promising demonstrated by the business making a small profit in 2021 and that for the quarter ended 30 September 2021 the business recorded sales of approximately $1.4 million and that the recovery has been made possible with experienced staff which includes the nominee.
According to this submission the position of Inbound Sales Representative or Campaign Manager has existed since the business commenced operating, that the business has previously had two nominations approved under 457 and 482 visas for substantially the same position within the business and that one of these remains employed by the business currently. It was stated that the business has four employees in equivalent positions as the nominee two of which are Australian citizens and the other is on a subclass 482 visa. It was further stated that these four positions are split into the sectors where events are run, and that the nominee has an industry specialisation in the indigenous sector and that the other three positions specialise in other sectors including aged and community services. It was stated that the nominee has been working in this position since July 2017 and is still working in this role and that he was working reduced hours from April 2020 and that now he is back to working full-time.
It was stated that the nominee works on various indigenous related events in the organisation including family violence, economic development, health, suicide prevention, housing and homelessness, and other issues related to indigenous affairs and that such activities require active involvement in the sector, attendance at events that the nominee has helped organise, and the development of material to provide expertise to staff involved in these projects. It was stated that without this knowledge the business would struggle to develop events and attract delegates and that the nominee, and the three other sales representatives have been important assets to the business.
The Tribunal notes that other material was provided including a list of future conference events and their key course content, more up-to-date financial information including BAS statements, material regarding the nominee’s activities in negotiating prices and discounts and other business activities, and other material.
The Tribunal also notes that a review of the duties and responsibilities of a technical sales representative in accordance with ANZSCO code 225499 reveals that such representatives represent companies in selling a range of industrial, medical, and pharmaceutical goods and services to industrial, business, professional and other establishments and that the qualifications required include a bachelor level degree and/or five years of relevant prequalification employment and/or one year of highly relevant employment within the last five years and that the duties and responsibilities include:
“Compiling lists of prospective client businesses using directories and other sources
Acquiring and updating knowledge of employers’ and competitors’ goods and services, and market conditions
Visiting regular and prospective client businesses to establish and act on selling opportunities
Assessing customers’ needs and recommending and explaining goods and services to them
Monitoring customers’ changing needs and competitor activity, and reporting these developments to sales management
Quoting and negotiating prices and credit terms, and completing contracts and recording orders
Arranging delivery of goods, installation of equipment and the provision of services
Reporting to sales management on sales made and the marketability of goods and services
Following up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising
Preparing sales reports and maintaining and submitting records of business expenses incurred.”
At the hearing the Tribunal had a discussion with the nominator and the nominee regarding the application.
At the hearing the nominator stated that he first started this business in Singapore in 2012 and then relocated the business to Australia in 2017 as most of his clients were from Australia. He stated that the business struggled significantly during the Covid pandemic because of the inability of the business to provide its traditional model of in-person learning and that it had to pivot to online events which were not particularly successful.
It was stated that prior to this the business had been very successful in Australia and won a national business award in 2020. It was stated that the business has 2 key activities, that is workshops and conferences, and that the nominee is vital to both in terms of working closely with clients and business representatives for these conferences and building rapport with these clients; and that with the workshop element of the business he typically deals with front line and middle level managers with between five and 15 years’ experience and that he has an excellent rapport with such business people that has allowed the company to rebuild itself after the difficulties of the last two years.
It was stated that the business only had business problems because of the pandemic and there were no systematic financial issues with the company and that it has now restructured itself and doing well financially. It was stated that the business genuinely attempted to employ whoever had the right skills and experience for this role at the time of the advertising of the role and that the nominee is the best candidate taking into account the full breadth of his qualifications and past experience, in particular, his past experience as an executive with the pharmaceutical company, his product knowledge in the area of the conference and workshop business and other factors.
The nominee stated that prior to coming to Australia on a student visa in 2015 that he worked for an investment company after leaving school for two years and then he worked for eight years as a sales executive with ‘Sanofi’ a pharmaceutical corporation based in Sri Lanka and that while here as a student on two successive student visas he completed a certificate IV level qualification in business management and a diploma level qualification in business and a part completed bachelor level degree in business and commerce. He stated that for a time he was also dependent on his wife’s temporary resident visa who arrived here in Australia in 2013 also on a student visa and that they were married in 2018.
The Tribunal has considered the evidence provided very carefully and finds that the position in this case of technical sales representative is genuine and that the nominee is carrying out the full breadth of requirements of this role and has been working here in that role for four years and eight months full-time and for four-months part-time during the pandemic. After discussions with the nominator the Tribunal is satisfied in this case that the business did try to find appropriate people in 2018 but struggled to find an Australian citizen to carry out this particular role.
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 has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant as the person who will work in the occupation.
The nomination was made using the approved form and the fee has been paid. The applicant has identified the nominee in the nomination. The nomination includes the location of the business, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Technical Sales representative (ANZSCO 225499).
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 rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.
For these reasons the requirements of r.2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved.
For these reasons the requirements of r.2.72(5) are met
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act.
The Tribunal is satisfied that there is no evidence that the applicant has any outstanding debt under s.140ZO.
For these reasons the requirements of r.2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of r.2.72(6) and r.2.72(14) do not apply.
For these reasons the requirements of r.2.72(6) are met.
Further, the Tribunal was provided with evidence that the nominee satisfied the English language test requirements and thereby the nominee satisfies the language test requirements in the relevant instrument that would apply as a nominee for a Subclass 482 visa in the Short-term stream, as applicable.
For these reasons the requirements of r.2.72(14) are met.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/051 Specified Occupations. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal is satisfied that IMMI 18/051, in force at the time of application, included the occupation of Technical Sales representative– ANZSCO Code:225499.
For these reasons the requirements of r.2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant provided evidence through a recent contract of employment, that the nominee will be employed as a full-time Technical Sales Representative – ANZSCO Code: 225499 and a contract salary of $65,000, plus superannuation.

The duties performed by the nominee, which were confirmed in evidence are consistent with the tasks and duties provided in ANZSCO Code: 225499.
For these reasons the requirements of r.2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/051. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)).
In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The applicant provided evidence through a recent contract of employment that the nominee will be employed as a full-time Technical Sales Representative – ANZSCO Code: 225499 on a salary of $65,000 plus superannuation.
For these reasons the requirements of r.2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).
The Temporary Skilled Migration Income Threshold (TSMIT) is currently AUD53,900 and the nominee is contracted to be paid $65,000 for the nominated occupation of Technical Sales representative– ANZSCO Code:225499, which it was submitted is greater than the award rate.
Further, the Tribunal is satisfied that the wage rate for a sales representative, as prescribed in the Modern Award, is less than the salary of $65,000 that will be paid to the nominee by the applicant.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) does not apply.
For these reasons the requirements of r.2.72(18)(a) and r.2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI: LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI: LIN – 18/036 that includes the following requirements:
“8        The advertisement of a nominated position
(1)    This section is made under subsection 140GBA(5) of the Act.
Language
(2)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.
Method
(3)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:
(a)    on a recruitment website with national reach in Australia; or
(b)   in print media with national reach in Australia; or
(c)    on radio with national reach in Australia; or
(d)   if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.
(4)    The following details of the position must all be included in the advertisement:
(a)    the title or a description of the position;
(b)   the skills or experience required for the position;
(c)    the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;
(d)   the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.
Duration
(5)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a)   print media;
(b)   radio;
(c)   website.”
The Tribunal is satisfied that the applicant has undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 that applied at the time of the engagement of the nominee, which was supported by evidence provided to the Tribunal prior to the hearing. In this regard, the position of Technical Sales Representative – ANZSCO Code: 225499 was advertised for 4 week periods in appropriate national job portals which the Tribunal accepts are national distributed print media that satisfies the expressed criteria.
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 notes that this requirement has been met.
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.
Concluding paragraphs
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.
Stephen Witts
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 812

7 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Standing