BRIDGE BLUE PTY LTD (Migration)

BRIDGE BLUE PTY LTD (Migration) [2022] AATA 1101 (28 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  BRIDGE BLUE PTY LTD
REPRESENTATIVE:  Mr miklos Rakos (MARN: 1173293)
CASE NUMBER:  2102873
HOME AFFAIRS REFERENCE(S):          BCC2020/2305923
MEMBER:Stephen Witts
DATE:28 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 28 April 2022 at 11:35am
CATCHWORDS

MIGRATION – application for approval of nomination of position – medium-term stream – accountant – genuine position – duties of and qualifications for nominated position – comparison of nominated position and ANZSCO occupation description – nominee’s performance in role and company’s continued operation during COVID-19 restrictions – detailed evidence from nominator and nominee – 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 18 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 15 September 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the medium term stream to work in the nominated occupation of Accountant (General) ANZSCO code 221111.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub regulation 2.72(10) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant, Mr Tim Teoh from Bridge Blue Pty Ltd, appeared before the Tribunal on 28 April 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee Ms Baatar.
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 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 has been provided with a copy of the delegate’s decision record dated 18 February 2021 by the applicant. In this decision it was stated that an accountant is a specific occupation that provides services relating to compliance and financial reporting, auditing, insolvency, and managing accounting information systems and would be associated with organisations providing accounting services to large business operations dealing with significant financial budgets and would not be concerned with the basic financial operations within small to medium-sized business operations.
It was stated by the delegate that occupations in this group would have a level of skill commensurate with a bachelor level degree or higher qualification and that the applicant is an agency that deals with education, migration and internship and that the bulk of their business transactions come from Mongolia and that the applicant has not provided evidence of significant financial transactions in the Mongolian market of the business; and while some duties stated as performed by the nominee may be consistent with those of the nominated occupation nevertheless the delegate was not satisfied that in the context of the applicant’s business that the majority of the tasks aligned with the tasks of the nominated occupation.
The Tribunal notes that it has been provided with evidence from the applicant including a submission dated 24 February 2021 from the applicant’s representative stating that the nominated occupation is genuine and that small to medium-sized business operations do offer that position in their organisation, that a large proportion of the duties and responsibilities of the applicant are not necessarily just clerical in nature, that there was sufficient information provided to demonstrate how the position fits into the business on a broader scale, and that the nominee has completed her Masters level qualification in professional accounting, as well as advanced diploma level qualifications and accounting qualifications and that she has also worked in the accounting field both in Mongolia and Australia and that she has carried out the tasks and duties in accordance with the nominated occupation. It was also stated that the nominated occupation could exist in a relatively modest financial environment and that the nominated occupation is not only possible to be maintained in a large organisation.
The Tribunal also notes a submission provided by the company’s accountant dated 5 March 2021 stating that the nominee was the accountant in the company and that the company was established in November 2004 as an international student recruitment agency, and that it has developed this business globally and has achieved growth in the Mongolian market of recent times.
It was also stated that the company has been profitable for the last two years and that for the past 16 months it has an in-house accountant, that is the nominee, who has been dealing with the financial part of the Mongolian business and that she remains in contact with clients in Mongolia from time to time. It was stated that in 2019 the business had total sales of approximately $3.6 million and that of that approximately $1.5 million was derived from the Mongolian market; and that in the 2020 financial year the total sales were $4.4 million, and the Mongolian market was $1.6 million; and that in the 2021 financial year total sales were $3.5 million and the Mongolian market was $1.3 million.
The Tribunal notes that also provided was legal and company extract material for the company and a further submission dated 27 January 2022 stating that the business has a head office in Sydney with branches in 23 different countries that represent approximately 400 education providers around the world and that the head office has five main departments including a finance, marketing, enrolment, migration, and IT Departments. It was stated that the head office manages its own internal accounting system and that it also organises marketing events in the market of Mongolia and the Philippines twice a year and that the nominee accountant analyses financial budgeting on these projects and the growth of global branches. It was stated that the finance department plays a significant role in this organisation.
The Tribunal further notes that material was provided in this submission making a comparison between the position description of the nominated occupation and the tasks associated with ANZSCO code 221111.
The Tribunal further notes that it was stated that the position of accountant was not created to secure a migration outcome, that there is no personal or familial relationship between the nominee and the company, that the company has not retrenched any employees in the previous 12 months, that the nominated occupation fits within the size, and scope of the business and that the nominee is eligible for registration because she is currently undertaking a CPA program.
The Tribunal also notes that a submission was provided on 19 April 2022 by the applicant’s representative stating that under the relevant ANZSCO code accountants engage in a broad spectrum of tasks and that “almost no accountant” would meet the full criteria, and that therefore the duties and responsibilities outlined in the code “is indicative at best and cannot be simply relied on when determining whether a position purports to be a genuine position”. It was further stated that the applicant is not performing tasks in the capacity of a bookkeeper but an accountant, and that she also has a responsibility to oversee the relevant administrative staff work in relation to basic tasks, such as accounts payable, accounts receivable, payroll and other administrative tasks but that the position is designed to ensure accuracy and provide training and management and is not a data entry function.
The Tribunal notes it was also stated that the occupation of accountant does not engage in clerical, bookkeeper and accounting clerk positions, nor does it operate in businesses that have an annual turnover of less than $1 million or that have fewer than five employees and that these conditions are designed to ensure that the position of accountant does involve planning and providing accounting systems and services relating to the financial dealings of organisations and individuals but that this does not mean that other tasks can’t also be completed as a part of the duties and responsibilities of an accountant. It was further stated that the nominee prepares reports used by persons both internal and external to the company such as management, tax professionals and credit providers and prepares reports, and that the nominee engages in such tasks and that she also processes the associated subsidiary company accounts. It was further stated that “an accountant (general) is a financial accountant looking at (past) compliance based financial reporting; the management accountant provides (future), strategic performance-based financial reporting; the tax accountant focuses on income reporting, quarterly and/or annual reporting, and tax compliance”.
The Tribunal notes it was also stated that the company organises approximately 20 to 30 events per annum and that these events are individually budgeted for and that accurate reporting is imperative as these events are often financed partially by other education providers.
The Tribunal notes that also provided was a letter from the Education Centre of Australia provided on 19 April 2022 stating that this organisation is a business partner of the nominator and that since working with it; it has experienced an increase in the number of Mongolian student enrolments in various programs. Also provided was a letter from an accountant dated 18 February 2020 stating that the total sales of the nominator has increased over the last few years.
At the hearing the Tribunal had a discussion with the nominator and the nominee regarding the application.
The nominator stated that he employed the nominee in early 2019 and that she has worked for the business as the in-house accountant on a full-time basis being paid a salary of $65,000 plus super since that time and that she has been a valuable member of staff. He stated that he was first advised by his chartered accountant in 2017 that the business was too large at that point not to have a full-time in-house accountant and that he employed 2 Australian citizen accountants from 2017 but that neither were able to be retained after their probation period of employment and that he was concerned that his in-house accountant needed to be able to speak Mongolian as that represents 40 to 50% of the business and that he would also like somebody who had a student background here in Australia who understood the industry. He stated that he employed these accountants, including the previous unsuccessful accountants, via advertisements placed on two national job portals Seek and Indeed. He stated that he interviewed three applicants at that time, but the nominee was the best applicant. He stated that the business survived the pandemic lockdowns and in fact in some ways the business grew through servicing clients who were in Australia and that the nominee is genuinely carrying out the duties and responsibilities of a general accountant and that other attributes, including her language ability, is assisting in growing the business.
The nominee stated that she first arrived in Australia in 2009 on a student visa and that she held several subsequent student visas successfully studying English, a bachelor level degree in accounting finished in 2012, and a Master of Professional Accounting which she finished in 2016, and that she is currently undertaking her CPA program.
The Tribunal had a detailed discussion with the nominator and the nominee regarding the activities and responsibilities of the nominee and is satisfied that the nominee is carrying out the duties and responsibilities in the business of a general accountant in accordance with ANZSCO code 221111.
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 Ms Bataar 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 Accountant (General) (ANZSCO 221111).
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 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 accountant (General) – ANZSCO Code: 221111.
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 the recent contract of employment, that the nominee will be employed as a full-time Accountant (General) – ANZSCO Code: 221111 and a contract salary of $65,000, plus superannuation.
The Tribunal also finds that the duties performed by the nominee, which were confirmed in evidence are consistent with the tasks and duties provided in ANZSCO Code: 221111.
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 the recent contract of employment that the nominee will be employed as a full-time Accountant (General)– ANZSCO Code: 221111 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 Accountant (General) – ANZSCO Code:221111, which it was submitted is greater than the award rate.
Further, the Tribunal is satisfied that the wage rate for a general accountant 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 hearing. In this regard, the position of accountant – ANZSCO Code:221111 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 has been met as required.
For these reasons the requirements of s 140GB(2)(aa) are met.
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 1101

28 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal