C Keay & D Keay (Migration)

[2019] AATA 6473

C Keay & D Keay (Migration) [2019] AATA 6473 (24 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  C Keay & D Keay

CASE NUMBER:  1912533

HOME AFFAIRS REFERENCE(S):          BCC2019/1942393

MEMBER:Stavros Georgiadis

DATE:24 December 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 24 December 2019 at 4:24pm

CATCHWORDS
MIGRATION – nomination refusal – Direct Entry nomination stream – Bricklayer–  standard business sponsor– applicant has not substantially complied with its superannuation contribution obligations – position associated with the occupation is not genuine – less favourable employment conditions entitlements – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140GB, 245AR, 359
Migration Regulations 1994, rr 1.13, 2.72, 2.73

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 3 May 2019 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 16 April 2019. A nomination of an occupation for a Subclass 482 Temporary Labour Shortage visa is made under s.140GB of the Act and r.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. In addition, additional criteria are specified in s.140GBA. In this case, the occupation of Bricklayer ANZSCO 331111 is nominated for a Subclass 482 visa in the Medium-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72(10) because the delegate was not satisfied that the position associated with the occupation is genuine.

4. Mr Christopher Keay (Snr) appeared on behalf of the applicant (a partnership with his spouse Ms Diane Keay) before the Tribunal on 9 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s son Mr Christopher Lee Keay (Jnr) who is the primary visa applicant in the related matter AAT casefile 1915677. The related matters were heard together in a combined hearing.  

5. The applicant was represented in relation to the review by its registered migration agent.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 r.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 applicant submits that both of these latter requirements have been met.

   The nomination must comply with the prescribed process; no adverse information known to Immigration; and equivalent employment conditions

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

9. 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.

10. Where the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b).

11. For the nomination to accord with the process set out in r.2.73, the nomination must include written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, unless the occupation is exempt.

    Post 18 March 2018 definitions

12. For nominations made on or after 18 March 2018, r.2.72(4) requires that the Minister, or this Tribunal on review, must be satisfied that there is no ‘adverse information’ known to Immigration about the person or a ‘person associated’ with the person, unless it is reasonable to disregard it. The 18 March 2018 amendments to the Regulations inserted new definitions of ‘adverse information’ (r.1.13A) and ‘associated with’ (r.1.13B) to replace the previous definitions which were considered to be inadequate to deal with some abuses.[1]

    [1] Explanatory Statement to F201800262, item 15.

13. The meaning of ‘adverse information’ in r.1.13A has been expanded to include specific reference to information that a person has given, or caused to be given to the Minister, an officer, the Tribunal or an assessing authority a bogus document or information that is false or misleading in a material particular.[2] The Tribunal notes that the definition clarifies that the examples of ‘adverse information’ in r.1.13A(2) are a non-exhaustive list.

    [2] r.1.13A as substituted by F201800262, The amendments make clear to applicants that nominations will be refused where documents are bogus or information provided is false and misleading.

14. The meaning of ‘associated with’ in r.1.13B has been significantly expanded to include a range of personal relationships and associates which can be used to continue unacceptable or unlawful business practices.[3] Again, the Tribunal notes the amended definition states that it is not an exhaustive definition.

    [3] r.1.13B as substituted by F201800262,

15. The new definitions are relevant here as the nomination approval application was lodged on 16 April 2019 and they apply to applications made on or after 18 March 2018.[4]

    [4]Part 6703 application provisions of F201800262.

16. The applicant submits that in all respects the nomination by the partnership business complies with all legislative requirements including those that relate to Commonwealth employment laws such as employment conditions (including non-wage conditions: annual leave and sick leave provisions and superannuation entitlements).

17. The applicant is a partnership, C Keay & D Keay, engaged in providing bricklaying services to various builders in Western Australia. The business is located in Rockingham in metropolitan Perth. The business employs labourers to assist the bricklayers some of whom are engaged as contractors and others as employees. The business has also engaged apprentice bricklayers. The applicant’s oral evidence is that the partnership presently employs 3 full time labourers, 3 full time apprentices and 8 contractors.

18. The applicant’s oral evidence is consistent with the organisational chart provided regarding the personnel engaged by the business, which the Tribunal accepts includes full-time employees, apprentices and contractors.  The Tribunal accepts the applicant’s initial and spontaneous oral evidence, when asked, that no employee is engaged for less than $450.00 per month or more than $200,000 per year gross earnings. Later on in the hearing, the applicant claimed that some staff were paid for just 2 days at a time of around $400 in a given month, but this was raised only after concerns put to the applicant regarding underpayment of superannuation relating to threshold levels of earnings of $450.00 per calendar month.  For this reason, the Tribunal prefers the initial spontaneous oral evidence given by the applicant regarding earnings for all employees in excess of $450.00 per month.

19. The oral evidence is that the nominee, who is the son of the partnership persons (both parents) is presently engaged as a contractor bricklayer, but will be engaged as a full time employee should the nomination application be successful.  Other (secondary) applicants include his spouse and son.  The oral evidence is that the nominee’s proposed salary is $64,000 gross per year or a package of $70,000 (including leave provisions and superannuation entitlements).

20. At the hearing, the applicant confirmed, when asked, that the Profit and Loss (P&L) statements for the years ended 30 June 2017 and 2018 were accurate and correct as these had been prepared by the business’ accountant, Peron Accountants of Rockingham, for tax and compliance purposes. The applicant told the Tribunal that the most recently completed financial reports were for the 2018 financial year lodged in October or November 2019 and that the 2019 financial reports had not yet been prepared due to a delay resulting from the applicant’s surgery (Christopher Keay Snr) in August 2019. The applicant also confirmed, when asked, that there were no changes or amendments proposed or made to the financial reports for 2017 and 2018. The Tribunal noted the Partner Declaration in the reports and the oral evidence that confirmed the financial statements / returns for 2017 and 2918 had all been lodged with the Australian Taxation Office (ATO).  For these reasons, the Tribunal places weight on these financial statements and in particular, the detailed Profit and Loss Statement for the year ended 30 June 2018 which includes the financials for 2017, which the Tribunal accepts are all complete and accurate.

21. When questioned about any adverse information know to Immigration about the partnership business or a ‘person associated’ with the partnership, the applicant said there was none. [adopting definitions for ‘adverse information’ (r.1.13A) and ‘associated with’ (r.1.13B)]. Mr Keay (Snr) explained, when asked, that neither of the partners had been the subject of any bankruptcy findings or proceedings, nor any action for underpayment of wages or other entitlements, no investigations by the Fair Work Ombudsman / Fair Work Australia or anything of that nature. The Tribunal however, raised some concerns (discussed below) relating to potentially adverse information and whether compliance with Commonwealth, State or Territory employment laws has been observed for the purposes of r.2.72(4), r.2.72(18)(a), and r.2.73 (in circumstances where the occupation of Bricklayer is not an exempt occupation).

22. The Tribunal discussed in some detail with the applicant financial statements in relation to the business. The Profit and Loss (P&L) statement for the 2017 financial year records $9,283.64 superannuation contributions for that financial year against wages paid of $114,873 which appears to be less than the requirement of 9.5% of $10,913 under Commonwealth Super Guarantee legislation.  For the following year 2018, the wages paid were $188,917 and superannuation contributions of $12,009 are recorded. At the hearing, the Tribunal put to the applicant that the required Superannuation Guarantee minimum of 9.5% on wages payroll for the 2018 year of $188,917 equates to $17,947 and that the $12,009 superannuation paid falls well short of the legislated Superannuation Guarantee amount.  The Tribunal also put to the applicant that similarly, for 2017, the $9,283.64 superannuation contributions paid for that financial year against wages of $114,873 falls short of the Super Guarantee 9.5% requirement of $10,913.

23. The Tribunal invited the applicant, in accordance with the procedure under s.359AA of the Act, to comment or respond to adverse information that subject to the response, would be the reason or part of the reason, for affirming the decision under review. The Tribunal explained that this was regarding this issue of non-compliance with the Superannuation Guarantee requirement, in breach of industrial laws of the Commonwealth, and the State of South Australia, in which the applicant operates a business and employs employees in the business, relating to workplace relations. The applicant was also advised that the Tribunal would consider any request for additional time to comment or respond.

24. The applicant responded straight away to the above without requesting additional time.  Mr Keay (Snr) explained that he believed the correct rate for superannuation payments in those financial years was 9.0% and that he only just now realised that the correct rate for 2017 and 2018 was actually 9.5%. He emphasised that it was an ‘honest mistake’ and that any shortfall would be remedied. The applicant explained further, that the partnership business relied on their accountant, Peron Accountants to take care of financial matters including processing of wages, payroll entries and superannuation payments and expected that any anomaly to have been raised by their accountant.  Mr Keay (Snr) responded, when asked, that their accountant was engaged at the time of preparation of the financial reports for 2017 and 2018 but that no anomaly had been raised.  He added that the partnership now has a financial software package (MYOB) to assist in keeping track of payroll and related obligations such as superannuation contributions to avoid such problems in the future.  The Tribunal gives this some weight in its consideration of whether it is reasonable to disregard this compliance requirement.

25. When asked if anything else could explain the underpaid superannuation figure compared to the wages, Mr Keay (Snr) added that apart from the short 9.0% paid, he thinks there was a delay in paying the final quarter superannuation contributions at the end of the 2018 financial year.  If the Tribunal accepts this oral evidence, then superannuation payments have been paid late as well as short.

26. The Tribunal accepts that superannuation was not paid to the partnership’s contractors (who invoice the partnership for services rendered) as they are not employees of the business.  Superannuation is also not payable to any employees earning outside the thresholds for Superannuation Guarantee, of $450 per calendar month (minimum) or more than the statutory upper limit of which there are no employees in the business. The statutory maximum threshold for the 2018/19 financial year is $54,030 per quarter or $216,120 per year.  Superannuation within the upper and lower thresholds is otherwise payable to the employees of this business. The oral evidence is that in 2018, all the partnership’s apprentices were aged in excess of 18 years.  Mr Keay (Snr) is ordinarily a full time employee but presently remains on part time hours (approximately half time) performing light duties due to his restrictions following the aforementioned surgery.

27. The Tribunal accepts the accountant’s financial reports as complete and accurate. On this point, the Tribunal accepts the oral evidence provided that no changes or amended tax returns for the partnership have been prepared to the financial years 2017 and 2018. The Tribunal also places weight on the evidence that the applicant’s accountant was engaged at the time of preparation of the reports that record the short / late payments with no remedy actioned to date. This weighs somewhat against disregarding adverse information relating to the employment entitlements / conditions although the Tribunal acknowledges the applicant’s position is to remedy any shortfall which would weigh in favour of the applicant. Further, the Tribunal has considered that the underpayment or short payment of superannuation was for two consecutive years which are also relatively recent. Considered collectively, the Tribunal is of the view that it is not reasonable to disregard the adverse information known, for the purposes of r.2.72(4).

28. The applicant’s oral evidence at the hearing was that all employees on a contract for bricklaying duties with the applicant will be engaged on the same conditions or entitlements that are equivalent to the minimum standards applicable to an Australian citizen of permanent resident worker.  Mr Keay (Snr) gave one such example of one worker, Mr John Randall, being a full time employed Australian citizen bricklayer engaged under the ‘Western Australian Commerce Award.’  The Tribunal is satisfied that superannuation applicable for such Australian citizen or permanent resident full time workers as employed bricklayers is 9.5% of their gross earnings falling within the aforementioned thresholds.

29. Following the hearing, the applicant produced additional documents.  The applicant explains that some of the discrepancies arise from “travel allowances” which he claims do not attract superannuation contributions. A letter from Peron Accountants addresses the large shortfall in 2018 “because in that financial year only three quarters of superannuation was accounted for as the fourth quarter was paid in the subsequent financial year.” The Accountants specifically mention: “The June 2018 quarter was’nt included in the financial statements for 2018 as superannuation cannot be claimed as a tax deduction if it has not been processed by the receiving superannuation fund.”  The provided Quicksuper account printout “shows the late payment and also the superannuation contributions have been processed up to end of financial year 2019.”  The additional material confirms late payment of superannuation entitlements.  The Tribunal places weight on the applicant’s oral evidence at the hearing that he short paid superannuation at 9% of payroll instead of the correct rate of 9.5% under the Superannuation Guarantee legislation.

30. Having considered the available evidence before it discussed, the Tribunal finds that superannuation contributions of 9.5 % of the applicant’s salaries and wages was short paid in 2017 and 2018 and also late paid in 2018.  From this the Tribunal is not satisfied that the applicant has substantially complied with its superannuation contribution obligations under the (Superannuation Guarantee) laws of the Commonwealth relating to its WA employees.  As aforementioned, the Tribunal places weight on the finalised taxation returns and financial statements for the business prepared by its accountant and provided to the Tribunal. 

31. Having considered the financial statements before it and the applicant’s oral evidence and submissions discussed, the Tribunal considers that the employment conditions / entitlements (other than earnings) that applied to the nominee were less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location. For the reasons already discussed, it is not reasonable, on balance, to disregard this information for the purposes of r.2.72(18)(a).

32. It follows that the requirements of r.2.72(4) and also r.2.72(18)(a) are not met.

33. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

34. The Tribunal affirms the decision not to approve the nomination.

    Stavros Georgiadis
    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)a party to a work agreement (other than a Minister);

    (iv)a party to negotiations for a work agreement (other than a Minister); and

    (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)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream—the person is a party to a work agreement (other than a Minister).

    (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)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream—the work agreement; 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), subregulation 2.73(13), paragraphs 2.73(14)(c) and 2.86(2A)(b), subregulation 2.86(2AA), paragraph 5.19(5)(g), subregulation 5.19(7), clauses 482.224 and 482.233 of Schedule 2 and paragraph 8607(3)(a) of Schedule 8.

    (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)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream, the Minister is satisfied that:

    (a)the occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the work agreement specifies requirements that must be met by the party to the work agreement—the requirements of the work agreement have been met; and

    (c)the number of nominations made by the person and approved by the Minister under section 140GB of the Act is less than the number of approved nominations permitted under the work agreement for the year.