Cali Press Pty Ltd (Migration)

Cali Press Pty Ltd (Migration) [2022] AATA 2711 (20 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cali Press Pty Ltd
REPRESENTATIVE:  Mr Jonathan Charles Granger (MARN: 0318801)
CASE NUMBER:  2109295
HOME AFFAIRS REFERENCE(S):          BCC2020/1107621
MEMBER:Michelle East
DATE:20 June 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 20 June 2022 at 12:08pm
CATCHWORDS
MIGRATION – nomination – Short-term stream – Café or Restaurant Manager– evidence has been provided as to why the restaurant is not a ‘limited-service restaurant’- Tribunal is well satisfied that the Mosman restaurant is not a limited service restaurant – actively and lawfully operating a business in Australia –genuine position – nominated tasks corresponds to the tasks of an occupation specified by the Minister – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245AR, 360
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 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 11 March 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r 2.72(8)(b) because he found the applicant was a limited-service restaurant and therefore was affected by the relevant inapplicability condition in the Instrument.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
A review of the Departmental file indicates an occupation of ‘Café or Restaurant Manager’ was nominated under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: r 2.72(1).
The nomination was made using the approved form and fee: r 2.73(3),(4) and (5).
The nomination was accompanied by any applicable nomination training contribution charge: r 2.73(5A).
The nomination is in the Short-term stream as the occupation is a short term strategic skills specified occupation – r 2.73(6) – IMMI 19/048.
The applicant has identified the nominee in the nomination: r 2.73(8).
The nomination includes the name of the occupation, Café or Restaurant Manager and the corresponding 6-digit code – 141111, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination r 2.73(9).
The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: r 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.
The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO, the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO and the position is with the applicant or an associated entity’s business: r 2.73(14).
For these reasons the requirements of r 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
No information has been provided to the Department or the Tribunal to suggest there is any adverse information known to Immigration about the applicant or a person associated with the applicant.
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 is approved as a standard business sponsor from 28 February 2022 to 28 February 2027. The Tribunal is satisfied on the evidence provided that the applicant is a standard business sponsor.
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.
There is no evidence to suggest the applicant has any outstanding debt under s 140ZO of the Act.
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 reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation in this case is ‘Café or Restaurant Manager’ and its corresponding 6-digit code is 141111. The occupation is subject to inapplicability condition 8 which requires the position to not be in a limited-service restaurant.
Evidence has been provided as to why the restaurant is not a ‘limited-service restaurant’.
Section 4 of the Instrument defines ‘limited-service restaurant’ as including one of the following:
-A fast food or takeaway food service
-A fast casual restaurant
-A drinking establishment that offers only a limited food service
-A limited service café including a coffee shop or mall café
-A limited service pizza restaurant
In his decision, the delegate stated that factors which distinguish full service and limited service restaurants include the type and quality of food and the way in which the food is ordered, served and consumed.
The Tribunal has reviewed the documents which have been provided to it as well as researching the business and its locations. Not all the restaurants are of the same size and scale. Submissions received indicate the nominee is intended to work in their Mosman Café on the lower north shore of Sydney. Documents provided for this café together with photos, samples of menus and staffing structure indicates the business provides full table service with an extensive menu. The Mosman restaurant offers a variety of hot and cold dishes which are prepared from fresh ingredients from scratch. The ethos of their business is to prepare food with no artificial ingredients, refined sugars and unethically sourced ingredients. An example was given of their food preparation:
For example, reduction techniques are used in making a Teriyaki glaze from scratch for a grilled salmon dish, vegetables are pickled fresh and a range of other marinades, sauces and base ingredients are prepared from scratch daily. Poultry and salmon are the main animal proteins used and methodical preparation from slicing salmon fillets, to portioning chicken fillets is required. 24 hour overnight marination of animal proteins plus tofu is also carried out.
Cali Press’ restaurants order approx. 50 sku’s on a daily basis that are involved in the preparation of the products. This ranges from fresh market garden based produce (spinach, kales, cherry tomatoes etc) to providore items such as goat feta, organic butter, apple cider vinegars.
This allows Cali Press to uphold its food ethos that demands no artificial ingredients, refined sugars and unethically sourced ingredients. This also means their kitchens can be setup more simply as they don’t require heavy equipment such as deep fryers and large extraction.
Their menu is created at a Chef level using only the finest ingredients with everything made from scratch. This is the Cali Press difference and therefore requires a skilled chef to create these products from the ground up. Further to this CP builds its menus seasonally and as a result requires constant updating and review of produce and recipes.
Cali Press’ meals are made on-site from raw ingredients, portion sizes may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking – using a range of equipment and techniques depending on the nature and size of the produce that is being prepared.
The submission further confirms that the applicant operates 10 different outlets (some of which have been closed due to the CBD Covid related closures), 4 of which operate as full service restaurants. This reflects the different client base associated with the location.
After carefully considering all the evidence provided the Tribunal is well satisfied that the Mosman restaurant at which the nominee is located is not a limited service restaurant.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has been provided with a copy of the employment contract for the nominee and is satisfied that the position is full time.
In considering whether the position associated with the nomination is genuine, the Tribunal has had regard to the evidence provided with the application, the further documentation provided to the Tribunal and the tasks described in the ANZSCO.
The ANZSCO provides as follows:
1411 Cafe and Restaurant Managers
Cafe and Restaurant Managers organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
- AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
- NZQF Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
- planning menus in consultation with Chefs
- planning and organising special functions
- arranging the purchasing and pricing of goods according to budget
- maintaining records of stock levels and financial transactions
- ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
- conferring with customers to assess their satisfaction with meals and service
- selecting, training and supervising waiting and kitchen staff
- may take reservations, greet guests and assist in taking orders
Occupation:
- 141111 Cafe or Restaurant Manager
141111 Cafe or Restaurant Manager
Alternative Titles:
- Food and Beverage Manager
- Restaurateur
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.
Note: Fast Food Managers are excluded from this occupation. Fast Food Managers are included in Occupation 142111 Retail Manager (General).
Skill Level: 2
Specialisations:
- Bistro Manager
- Canteen Manager
- Caterer
- Internet Cafe Manager
In their submission to the Tribunal the applicant provided the following:
Cali Press’ Restaurant manager role in 2.0 restaurants is a leadership position in a dining establishment that involves managerial tasks such as planning menus, purchasing and pricing items according to a budget and maintaining records of stock levels and financial transactions. Their restaurant managers are also expected to assess the level of customer satisfaction and be responsible for selection, training and supervising of waiting and kitchen staff.
The organisation chart for the Mosman café demonstrates a good level of staffing with two full-time and one part-time cook. The business also employs 4 part-time kitchen staff and 4 part-time food and beverage attendants and one part-time barista.
The financial statements for the business indicate its financial viability. The Tribunal notes that several of its outlets have had to close during Covid related lockdowns which effectively left the Sydney CBD without a customer base. In spite of this, the business has remained profitable and the Tribunal is satisfied of its financial capacity.
The Tribunal has carefully considered all of the information and evidence provided. The Tribunal is satisfied that the majority of the tasks which the nominee will be undertaking are consistent with the nominated position and are required in the context of the applicant’s business.
There is no evidence to suggest that the application was lodged to secure a migration outcome.
Having carefully considered all the documentary evidence provided, the Tribunal is satisfied that the position associated with the nominated occupation is genuine.
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. 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.
The applicant has provided to the Tribunal a copy of a signed contract of employment dated 22 February 2020. The contract confirms the nominee will be employed by the applicant.
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 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).
The income threshold specified in IMMI 18/033 is $250,000. The annualised salary of the nominee is given as $57,500. As the annual earnings in relation to the occupation will not be at least the specified amount the requirements of r 2.72(15) must be met.
Regulation 2.72(15)(c) requires that the annual market salary rate (AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. Section 7 of IMMI 18/033 provides the method for determining the annual market salary rate where an Australian worker is performing equivalent work and section 8 provides for the method where there is not an Australian worker performing equivalent work. The applicant declared in this application that the applicant did not have Australian employee(s) performing the same work as the nominated person. The Tribunal accepts there is no fair work instrument, state industrial instrument or transitional instrument applicable to the nominated occupation. The annual market salary rate is the ‘annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information’. The applicant has declared in the application that the market salary rate was determined by industry salary survey. The Tribunal is satisfied that the AMSR has been determined by the applicant in accordance with the relevant method.

For these reasons the requirements of r 2.72(15)(c) are met.
The AMSR excluding any non-monetary benefits is $57,500, which is not less than the TSMIT of $53,900 (IMMI 18/033).
For these reasons the requirements of r 2.72(15)(d) are met.
The employment contract for the nominee confirms that her annual earnings will not be less than the AMSR.
For these reasons the requirements of r 2.72(15)(e) are met.
The nominee’s annual earnings, excluding any non-monetary benefits is still more than the TSMIT.
For these reasons the requirements of r 2.72(15)(f) are met.
There is no information known to the Department or the Tribunal indicating that the AMSR determined is inconsistent with Australian labour market conditions relevant to the occupation.
For these reasons the requirements of reg 2.72(15)(g) are met.
Accordingly, the requirements of r.2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
There is no information known to Immigration and/or the Tribunal that indicates that the employment conditions that apply to the nominee are less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location. For these reasons the requirements of r.2.72(18)(a) are met.
Furthermore, there is no information known to Immigration and/or the Tribunal that indicates the applicant has engaged in discriminatory practices and therefore r 2.72(18)(b) is met.
For these reasons the requirements of r 2.72(18) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or 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 LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036.
Pursuant to that instrument, labour market testing is required to be undertaken in relation to the nominated occupation in the period of 4 months ending on the day on which the nomination is lodged. It must be advertised in English, on a national recruitment website, print media or radio and must include the title, skills or experience required, the name of the approved sponsor and the salary. Expressions of interest must be accepted for at least 4 weeks from when the advertisement is first published.
The nomination application states that ads were placed on a national online recruitment website on 18 November 2019 and 24 January 2020. The applicant said they received 150 applications. The advertisements have been provided to the Tribunal.
The Tribunal is satisfied that the labour market testing was undertaken in the specified period, in the manner set out in the instrument, the nomination was accompanied by evidence of the labour market testing and that there was no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position.
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 application for approval of the nomination was lodged on 11 March 2020 and therefore liability to pay the charge arises for this nomination.
The Tribunal is satisfied that payment of the training nomination charge was made at the time of the application.
For these reasons the requirements of s 140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Michelle East
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 2711

20 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal