BPC Telecom Pty Ltd (Migration)

[2024] AATA 2870

BPC Telecom Pty Ltd (Migration) [2024] AATA 2870 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  BPC Telecom Pty Ltd

REPRESENTATIVE:  Mr Thomas Peter Drakopoulos (MARN: 9357780)

CASE NUMBER:  2101198

HOME AFFAIRS REFERENCE(S):          BCC2020/1304832

MEMBER:Jade Murphy

DATE:28 June 2024

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 28 June 2024 at 12:52pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Sales and Marketing Manager – genuine position – ANZSCO description – undertaking duties at a lower skill level than the nominated occupation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 January 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).

2. The applicant applied for approval on 3 April 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.

3. 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 the position associated with the nominated occupation is genuine.

4. Mr Blagoja Trifunovski, Director, appeared before the Tribunal on 5 March 2024 to give evidence and present arguments on behalf of the applicant.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. 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

7. 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

8. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

9. Having reviewed the application form on the Department of Home Affairs’ (the Department) file, the Tribunal is satisfied that:

   ·the applicant nominated a relevant occupation under s 140GB(1)(b), being Sales and Marketing Manager (ANZSCO 131112): reg 2.73(1);

   ·the application identified the nominee, Mr Tushar Mehta, the proposed applicant for a Subclass 482 visa, as the person who would work in that occupation: reg 2.73(8);

   ·the nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);

   ·the applicant has identified the nominee in the nomination: reg 2.73(4)/(4A) and reg 2.72(5);

   ·the nomination was accompanied by the applicable nomination training contribution charge: reg 2.73(5A);

   ·the nomination is in the short-term stream, as specified, as a short-term specified skilled occupation: reg 2.73(6);

   ·the applicant has provided the certification as to whether or not the applicant has engaged in conduct that constitutes a contravention of 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 the location at which the occupation will be carried out, and the name and/or 6-digit ASCO/ANZSCO code, as well as the relevant certifications mentioned: reg 2.73(9); and

   ·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, unless the occupation is exempt that the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14).

10. For these reasons the requirements of reg 2.72(3) are met.

    No adverse information known to Immigration

11. 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.

12. The Tribunal is satisfied that there is no evidence to indicate that there is anything adverse that is known to the Department (or the Tribunal) about the applicant, or any person associated with it.

13. For these reasons the requirements of reg 2.72(4) are met.

    Nominator is a standard business sponsor

14. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

15. On review, the applicant provided documentary evidence that the applicant has approval as a business sponsor, valid between 18 March 2020 and 18 March 2025. The Tribunal has also confirmed this with Departmental records.

16. For these reasons the requirements of reg 2.72(5) are met.

    Payment of debt mentioned in s 140ZO

17. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

18. The Tribunal is satisfied on the applicant’s evidence that it does not have any relevant debts incurred pursuant to s 140ZO of the Act that are outstanding.

19. For these reasons the requirements of reg 2.72(5A) are met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

20. 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).

21. 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

22. 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 occupation must also apply to the nominee in accordance with the instrument.

23. The applicant stated in the nomination application form submitted to the Department that the nominated occupation is Sales and Marketing Manager, with the corresponding ANZSCO code of 131112. Further, the Tribunal is satisfied the nominated occupation is not subject to any applicability conditions specified in the relevant instrument.

24. For these reasons the requirements of reg 2.72(8) are met.

    Position must be genuine and full-time

25. 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.

26. As set out in the delegate’s decision, this was the reason the nomination was refused. The delegate noted that they had considered the ANZSCO description of the nominated occupation, the context of the business setting, financial profile, staffing structure and primary activities of the business. The delegate also noted they had considered all supporting documentation provided by the applicant. The delegate was not satisfied that in the context of the applicant’s business that the majority of tasks that the nominee was actually likely to perform were consistent with the nominated occupation. The delegate considered that the scale of the business is not consistent with a full-time position dedicated to the tasks at a skilled level. The delegate found that the nominee would likely have lower-level responsibilities as the business mainly operates in a customer service focused environment and therefore the nominee would not have the corporate level responsibilities that are consistent with this position. Ultimately the delegate considered the nominee would be undertaking duties at a lower skill level than the nominated occupation. As a result, the delegate was not satisfied that the position associated with the nominated occupation is genuine.

27. At hearing, the Tribunal noted the written submissions provided by the applicant regarding the delegate’s concerns in this regard but asked Mr Trifunovski for further oral submissions, particularly considering the change in the nature of the business.

28. Mr Trifunovski told the Tribunal that the applicant previously operated two Telstra telecommunications outlets in Swan Hill and Kerang, in regional Victoria. In 2022, the applicant entered negotiations with Telstra to open three further locations in Keysborough, Dandenong, and Pakenham. The nominee was heavily involved in the expansion of the business. Mr Trifunovski explained that the negotiations were halted when Telstra decided to make all outlets across Australia redundant and pay them out so that they would be operated directly by Telstra going forward. Mr Trifunovski submitted that he bought out his ex-business partner and he, together with the nominee, made strategic decisions about how the business would continue to operate. Mr Trifunovski continued as the Director and the applicant went on to operate several Advanced Hair Studio outlets. The Tribunal notes that despite the change in operational business, it is satisfied that the applicant remains the same sponsor for the purposes of this application. Mr Trifunovski told the Tribunal that the nominee was integral to the expansion that the applicant has forged in the hair industry, applying his same skills and experience from the telecommunications industry in sales and marketing. The applicant currently has Advanced Hair outlets in Bendigo, Shepparton, Albury, Geelong ad Ballarat. The applicant is currently in negotiations to expand further into NSW, specifically Wollongong and Newcastle.

29. Mr Trifunovski told the Tribunal that the nominee’s position has not changed with the applicant’s change in industry. The nominee’s role has never been about running a store as the delegate inidcated, rather his purpose has been to increase locations. Mr Trifunovski stated that it is so much more than just customer service. The nominated position requires the person to have exceptional skills in sales, especially to be able to capitalise on opportunities for growth and expansion. Mr Trifunovski told the Tribunal that if the business did not have a Sales and Marketing Manager that the business would collapse temporarily because he cannot do it on his own. Mr Trifunovski told the Tribunal that he is in his 60s and does not have the energy levels to pursue everything required to grow the business. He explained that the business cannot expand without new people and that the nominee is crucial to this process. Mr Trifunovski stated that the nominee is crucial to the business and that they are aligned in terms of the approach to sale, marketing, and growth strategy.

30. Mr Trifunovski submitted that the Advanced Hair Studios business operates on a unique business model because the leads for clients are minimal, so the need to be able to execute the sales is critical. The nominee is heavily involved with training staff in each studio to be able to do this because the applicant’s profitability relies on it.

31. The Tribunal considers the oral testimony of Mr Trifunovski to be candid, significantly detailed and therefore reliable. The Tribunal has had regard to the documentary evidence provided including financial reports, the position description, the employment reference and contract, and the organisational chart. The Tribunal notes that Mr Trifunovski’s oral testimony was corroborated and supported by the documentary evidence and the Tribunal places significant favourable weight on both to find that the position associated with the nominated occupation is both genuine, and full time.

32. For these reasons the requirements of reg 2.72(10) are met.

    Employment under contract

33. 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 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)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.

34. Based on the documentary evidence before it, specifically the signed employment contract dated 1 July 2022, the Tribunal is satisfied that the nominee will be engaged as an employee under a written contract of employment by the applicant and a copy of this has been submitted to the Tribunal.

35. For these reasons the requirements of reg 2.72(11) are met.

    Annual earnings

36. 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).

37. As set out in the amendment letter to the applicant’s employment contract dated 1 July 2022, the Tribunal notes that the nominee’s annual earnings are specified as a base salary of $75,000, excluding superannuation with expenses and a car which Mr Trifunovski states is a package valued at over $100,000. This was confirmed at hearing as the current salary. The Tribunal notes that this does not exceed the amount specified in the relevant instrument, that is $250,000.

38. 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.

39. Mr Trifunovski told the Tribunal that there is no Australian citizen or permanent resident performing the same role in the same location within the business. The Tribunal accepts Mr Trifunovski’s submission in this regard. In response to the Tribunal’s request at hearing, the applicant provided evidence of current market research obtained from online salary survey source Seek.com that demonstrated that current vacancies for a Sales and Marketing Manager in a similar location and industry are being advertised in a salary range between $70,000 and $90,000. The Tribunal accepts the market research evidence provided by the applicant and relies on it. As a result, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. For these reasons, the requirements of reg 2.72(15)(c) are met.

    Employment conditions

40. 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.

41. 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.

42. There is no information before the Tribunal that indicates the nominee’s employment conditions will be less favourable than those for the Australian equivalent. For this reason, the requirements of reg 2.72(18)(a) are met.

43. There is no information before the Tribunal that indicates the applicant has engaged in any discriminatory recruitment practices. For this reason, the requirements of reg 2.72(18)(b) are met.

    Labour Market Testing (LMT)

44. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘LMT 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).

1. For these purposes, LMT 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 LMT 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 LMT 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.

2. The manner in which LMT 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.

3. The Tribunal is satisfied that the LMT condition applies to the applicant, having regard to the exemptions contained in the relevant instrument.

4. On review, the applicant provided documentary evidence of a Seek.com advertisement for the nominated position placed between 5 February 2020 and 8 March 2020 and further evidence of an advertisement for the nominated position that was placed between 12 March 2020 and 12 April 2020.

5. The Tribunal, having regard to the relevant testing period being between 4 December 2019 and 4 April 2020, and the documentary evidence as outlined above, is satisfied that the LMT requirements in s 140GBA are met.

   Nomination training contribution charge

6. 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).

7. The Tribunal is satisfied that the applicant is liable to pay the charge and that it has done so with the Department on lodging the application.

8. For these reasons the requirements of s 140GB(2)(aa) are met.

9. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

10. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Jade Murphy
    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)…