CAROLINE K MORGAN PTY LTD (Migration)

CAROLINE K MORGAN PTY LTD (Migration) [2020] AATA 2926 (10 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CAROLINE K MORGAN PTY LTD
CASE NUMBER:  1816495
HOME AFFAIRS REFERENCE(S):          BCC2018/1585593
MEMBER:Cathrine Burnett-Wake
DATE:10 March 2020
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 10 March 2020 at 1:11pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – specified occupation – Customer Service Manager – inapplicability conditions – minimum annual earnings – front-line retail setting – direct client transactional interaction – business turnover – genuine position – nature of the nominee’s role – numerous ongoing wholesale customers – Labour Market Testing – Nomination training contribution charge – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 140ZM
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2018 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).
The applicant applied for approval on 9 April 2018. A nomination of an occupation for a Subclass 482 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 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 cl. 2.72(10)(a) because the delegate was not satisfied that the nominated position was genuine.
Mrs Natasha KANG (Import and Export Manager at Caroline Morgan Pty Ltd) appeared on behalf of the applicant before the Tribunal on 20 February 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
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 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 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 r.2.73. The Tribunal, based on the nomination application contained on the Department’s file, is satisfied of the following:
- The person is nominating an occupation under s.140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: r.2.73(1);
- The nomination was made using the approved form and fee: r.2.73(3), (4) and (5);
- The nomination was exempt from a nomination training contribution charge: r.2.73(5A);
- The nomination is a Short-term stream occupation and is a short term occupation skills specified occupation: r.2.73(6);
- The applicant has identified the nominee in the nomination as Rachna GUPTA: r.2.73(8);
The nomination includes the name of the occupation as Customer Service Manager and the corresponding 6 digit code as ANZSCO 149212; the location at which the occupation will be carried out is listed as an address in Brisbane; the proposed period of stay for a visa granted on the basis of the nomination is up to 2 years; the annual turnover for the nomination is listed as AUD31,221,448: 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: r.2.73(13);
The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and, that the position is in the person’s 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 rr.1.13A and 1.13B.
There is no 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 a current approved standard business sponsor valid from 19 April 2017 until 18 April 2022.
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 debt as mentioned in 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: r.2.72(6)(a) and r.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): r.2.72(14).
The nominee was the holder of a Subclass 457 visa on the basis of a previous nomination in the same occupation with the same employer. This visa was held from 29 April 2014 to 29 April 2019. Two family members were granted Subclass 457 visas as secondary applicants of the nominee in relation to that nomination and they are included in the current application for nomination.
For these reasons the requirements of r.2.72(6) are met.
A copy of the nominee’s PTE Academic test report dated 6 January 2018 has been provided, indicating an Overall Score of 52, as such has the necessary English language proficiency pursuant to IMMI 18/032.
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, IMMI18/048. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation is that of Customer Service Manager, ANZCO 149212. The Tribunal is satisfied that the occupation applies to the nominee. The occupation of Customer Service Manager is also subject to the following inapplicability conditions:
- ‘2’:- The position has nominated annual earnings of less than AUD65,000.
- ‘11’:-.The position:
- ‘19’:-.The position is in a business that has an annual turnover of less than AUD1,000,000.
The Tribunal is satisfied that the annual earnings of the nominee will be at least AUD65,000 as demonstrated in the employment contract, and as advised in verbal evidence by Mrs Natasha KANG during the hearing.
The Tribunal is satisfied that the position is not involved in a front-line retail setting, nor involves direct client transactional interaction on a regular basis. As per the written evidence and verbal evidence by Mrs Natasha KANG during the hearing, the position is located in a warehouse and predominately involves managing a team that deals with over 2000 wholesale customers.
The Tribunal is satisfied that the business turnover exceeds AUD1,000,000. As demonstrated in the company financial statements the business has a turnover in excess of AUD30,000,000 per annum.
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 Tribunal notes, that the nominee has been employed with the applicant since 2014 as a Customer Services Manager, and previously held a 457 visa in the same position.
During the hearing Mrs Natasha KANG was able to clearly articulate the nature of the nominee’s role. This in the Tribunal’s view aligned with that of ANZSCO 149212 Customer Service Manager. She went into great depth about the nominee’s duties performed in the role since 2014 and the expectations of how they would continue into the duration of any Subclass 482 visa that may be granted. The nominee manages a team of people who oversees the 2000+ customers of the wholesale division of the company. The evidence before the Tribunal is that the nominee has and will continue to develop and review company policies regarding wholesale customers, provide management to team members, plan and implement strategies for customer retention and have overall carriage and responsibility of customer satisfaction within the wholesale division of the business.
On the totality of the evidence, the Tribunal is satisfied that the business requires a Customer Service Manager in their Brisbane warehouse. The Tribunal is satisfied, on the basis of the financial records that the business is of a significant scale and has a large turnover with numerous ongoing wholesale customers that require the support and services of a Customer Service Manager to ensure customer satisfaction and that company standards of service are met.
Having regard to the nature, size and activities of the business, the tasks to be undertaken in the position and the nominee's background, the Tribunal is satisfied on the totality of the evidence that the position of Customer Services Manager, as identified in the nomination, 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 IMMI 19/212. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (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 is not an overseas business sponsor; as such the nominee is required to be engaged as an employee under a written contract of employment by the applicant or an associated entity. A copy of the employment contract was provided to the Department. This contract is dated 9 April 2018 and is signed by both the employer and nominee.
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 [insert reference: see ‘TSMIT’ tab of the Register of Instruments: Business Visas]. 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 the relevant instrument: 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 relevant instrument (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).
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.
The annual earnings specified for the nominee is AUD65,000 plus superannuation.
The Tribunal is satisfied that the General Retail Industry Award 2010 includes ‘Clerical Officer’ classifications which encompass administrative and/or management related positions in connection with retail operations. Under this award the adult full time weekly rate for a Clerical Officer Level 5 is $995.50 (or approximately $51,766 per year), in addition to which there are various loadings for weekend work and other overtime. In the Tribunal’s view the Level 5 classification is appropriate and is indicative of the typical duties and skills of the nominee. It is however, not entirely clear to the Tribunal whether this would be applicable to the nominated position or not. The applicant did not claim to have based the nominee's salary on this, but instead used market rates and claimed they paid above award rates nonetheless. Therefore, the Tribunal considers it appropriate to have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has consulted a range of sources of information, including:
· the Government's Job Outlook website (accessed March 2020) which indicates that the average weekly earnings before tax for Customer Services Managers are $1756 (data stated to be based on an Australian Bureau of Statistics survey undertaken in August 2015): ;
· Payscale website ( ) report (accessed March 2020) provides a salary range for a Customer Service Manager of $50,000 to $94,258 per annum: ;
The Tribunal is satisfied from the most recent salary survey information from Job Outlook, that the salary package attached to the nominated position is within the range of salaries for the occupation.
On balance, the Tribunal is satisfied that the annual market salary rate for the nominated occupation has been determined by the applicant in accordance with the relevant instrument. For these reasons the requirements of r.2.72(15)(c) are met.
The annual market salary rate, excluding any non-monetary benefits, for the occupation is not less than the TSMIT. For these reasons the requirements of r.2.72(15)(d) are met.
The nominee's annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation as has been determined. For these reasons the requirements of r.2.72(15)(e) are met.
The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of r.2.72(15)(f) are met.
There is not any information that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of r.2.72(15)(g) 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: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) does apply.
There is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of r.2.72(18)(a) are met.
There is no information that indicates the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of 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 positon. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant instrument. 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 evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
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 the relevant instrument.
The Tribunal is satisfied that the applicant is not exempt from having to provide evidence of labour market testing, and has reviewed what was provided to the Department with the nomination. This indicates that the nominated position was advertised on careerone.com on 21 March 2018 and on seek.com on 21 March 2018 and each advertisement was for a period of at least 28 days. The receipts of payment of these advertisements have also been provided. The Tribunal is satisfied that these advertisements met the requirements set out in the relevant instrument.
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, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. 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).
This nomination was lodged prior to 12 August 2018, there is no liability under s.140ZM for the applicant to pay the nominated contribution charge set under s.140GB(2)(aa). This is because of Item 16(3) of Schedule 1 in the Migration Amendment (Skilling Australians Fund) Act 2018, which states that ‘Division 3B of Part 2 of the Migration Act 1958, as inserted by Part 1 of this Schedule, applies in relation to nominations made on or after the commencement of this item.’ The date of commencement was 12 August 2018; accordingly s.140ZM (which resides within Division 3B of Part 2) does not apply to this application, having been made prior to 12 August 2018.
For these reasons the requirements of s.140GB(2)(aa) are not applicable.
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.
Cathrine Burnett-Wake
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.

[2020] AATA 2926

10 March 2020

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