Contour Glass Tinting PTY LTD (Migration)

Contour Glass Tinting PTY LTD (Migration) [2023] AATA 1770 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Contour Glass Tinting Pty Ltd
REPRESENTATIVE:  Ms Rosemary Acutt (MARN: 1461394)
CASE NUMBER:  1925160
HOME AFFAIRS REFERENCE(S):          BCC2019/3552122
MEMBER:K. Chapman
DATE:6 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 06 April 2023 at 3:21pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Glazier – genuine position – sole director and shareholder of the applicant company – strong employment history in the nominated occupation – genuine recruitment process – appropriately qualified for current position – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 21 August 2019, 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, Contour Glass Tinting Pty Ltd, applied for approval on 16 July 2019. The applicant nominated Mr Jojo Valurante Agno (‘the nominee’) in the occupation of Glazier, which is coded as number 333111 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant provides glass glazing services to consumers in the Gold Coast region of Queensland.
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 matter, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination, due to a lack of satisfaction that the position associated with the nominated occupation is genuine. On 8 September 2019, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
On 20 September 2022, the Tribunal wrote to the applicant, pursuant to subsection 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under reg 2.72 of the Regulations and s 140GB of the Act. In response, the Tribunal received material including, but not limited to, submissions, standard business sponsorship approval, English language test results of the nominee, identity documents, ASIC information, financial statements, taxation records, payroll information, employment contract of the nominee, commercial invoices, extracts from the Joinery and Building Trades Award 2020, market salary information, recruitment advertising material, statement of the nominee and the SAF levy payment receipt. The Tribunal notes that it had far greater relevant documentary evidence before it than was available to the delegate. All material received has been duly considered by the Tribunal.
The applicant, through its current Director Mr Jojo Valurante Agno (also ‘the nominee’), appeared by video before the Tribunal on 24 February 2023 to give evidence and present arguments. The hearing was, by consent, combined with the associated nominee review hearing. Mr Agno confirmed he was comfortable participating in the combined hearing by video. The applicant was represented in relation to the review by their registered migration agent (‘the representative’). The representative was permitted to make submissions at the review hearing. The Tribunal also took evidence from Mrs Luzviminda Agno, the wife of Mr Agno.
The Tribunal notes that Mr Agno provided his evidence in a direct and engaging fashion. The Tribunal is satisfied he is a witness of truth and accordingly his evidence at hearing is afforded high weight. Similarly, Mrs Agno is assessed by the Tribunal to be a credible witness and her evidence is also afforded high weight.
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.
The applicant lodged their application for nomination identifying the occupation of Glazier (ANZSCO 333111) to be performed by Mr Jojo Valurante Agno, who is an applicant for a Subclass 482 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form with the necessary declarations, identifies a location in the Gold Coast region where the occupation will be carried out, was accompanied by the prescribed fee (including the nomination training contribution charge) and included the relevant written certifications required pursuant to reg 2.73. Further, the Tribunal is satisfied that the applicant is a standard business sponsor and the nomination correctly identifies the six digit ANZSCO code for an occupation, contained in a legislative instrument, as an approved occupation for the purpose of a Subclass 482 visa in the Medium-term stream.
For these reasons, the requirements of reg 2.72(3) are satisfied.
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.
There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.
For these reasons, the requirements of reg 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 submitted a copy of their Sponsorship Approval Notice confirming they are an approved standard business sponsor for the period 29 December 2022 to 29 December 2027.
For these reasons the requirements of reg 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 before the Tribunal of any debt relevant to s 140ZO of the Act.
For these reasons the requirements of reg 2.72(5A) are satisfied.
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); and
·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 presently 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, LIN 19/048. The occupation must also be applicable to the nominee in accordance with this instrument.
The applicant nominated the occupation of Glazier (ANZSCO 333111). This occupation is not subject to an inapplicability condition (or ‘caveat’). Following careful consideration of the evidence, the Tribunal is satisfied that the nominated occupation is duly listed in instrument LIN 19/048 and is applicable to the nominee, who is actually employed as a Glazier (ANZSCO 333111) by the applicant.
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.
At hearing, Mr Agno outlined that he held several prior Subclass 457 visas, with various employers in Australia, from 2007 until 2018. In his view, these employers were happy to employ him as a Glazier, however they did not wish to sponsor him for a permanent visa due to their misplaced concerns he would seek other employment thereafter. Mr Agno outlined that he responded to recruitment advertising of the applicant in 2018 and was successfully engaged as a Glazier by them in April 2018, after transferring his existing Subclass 457 visa to their nomination. The sole director and shareholder of the applicant company at that time was Ms Babeth Garcia.
Ms Garcia remained the sole director and shareholder of the applicant company from its inception in 2018 until August 2022, when she retired. Mr Agno advised that Ms Garcia could not find another buyer for the business, so he negotiated with her to purchase the applicant company. Accordingly, in August 2022, Mr Agno became the sole director and shareholder of the applicant company.
Mr Agno indicated that the applicant was in its initial trading phase during Financial Year 2017/18 and that its financial performance then was problematic. Unfortunately, the Department appeared to rely upon the financial performance of the business during this time when they assessed the present application for nomination, according to Mr Agno. In his view, they did not take into consideration the inception phase of the business, nor have they had the opportunity to have regard to the applicant’s successful financial performance in recent times. Indeed, Mr Agno estimates a turnover of around $230,000 at the end of the present Financial Year. The Tribunal notes that the submitted financial reports and taxation records demonstrate the applicant company has demonstrated growth in its financial performance from 2018 until the present time. For instance, in Financial Year 2021/22, the applicant’s turnover was approximately $220,000. On balance, the Tribunal is satisfied that the applicant is a financially viable entity, that is able to sustain the employment of Mr Agno in the nominated occupation.
Mr Agno explained that due to his current visa status, he is unable to borrow funds commercially and engage direct employees for the applicant. Accordingly, he is the sole employee of the applicant, whilst also performing the duties of the director. The applicant will engage contractors to assist the business from time to time. Once Mr Agno’s visa status is more certain, he plans to employ an Australian apprentice worker. Mr Agno was adamant that his employment by the applicant was conducted on a bona fide basis when Ms Garcia was the director of the applicant company. He maintained that his continued employment as a Glazier by the applicant is vital for the business to continue. The evidence of Mrs Agno regarding the history of her husband’s employment was consistent with his evidence in this regard. Additionally, both Mr and Mrs Agno gave evidence regarding their integration into the Australian community, including having two Australian citizen children and a third child who will acquire such citizenship later in 2023.
Mr Agno outlined his duties in a manner consistent with the ANZSCO description for the nominated occupation. Additionally, he informed the Tribunal of his extensive experience as a Glazier in the years prior to his employment with the applicant. This includes experience obtained in The Philippines and in Dubai. It is apparent to the Tribunal that Mr Agno has over twenty years’ experience in the nominated occupation and he is appropriately qualified for his current position.
Having regard to the submitted evidence, the Tribunal is satisfied that the nominee performs the full time role of a Glazier (ANZSCO 333111) as defined in ANZSCO. Following careful consideration of the evidence, the Tribunal is satisfied the nominee’s position is consistent with the size and scope of the applicant’s business, and that he is legitimately employed to fill a position that cannot be filled from the domestic labour market (noting the skill shortages in the occupation of Glazier in Australia at present). Of note, the Tribunal accepts that the nominee was initially employed by the previous owner of the applicant in a genuine recruitment process. That he is now the sole director and shareholder of the applicant company does not detract from the legitimacy of his position, having regard to his strong employment history in the nominated occupation by the applicant since 2018. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Glazier (ANZSCO 333111) is genuine and full time.
For these reasons, the requirements of reg 2.72(10) are satisfied by the applicant.
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 instrument IMMI 18/035. 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)).
It is common ground the applicant is not an overseas business sponsor and the requirements of reg 2.72(11) must be satisfied. Nor is the nominated occupation exempt, by way of Ministerial instrument, from the requirements of reg 2.72(11). Therefore, the applicant (or an associated entity) must employ the nominee, engage them pursuant to a written contract of employment, and provide a copy of this document to satisfy the relevant requirements.
The applicant submitted a copy of the latest employment contract pertaining to the nominee, dated 22 September 2022. The Tribunal is satisfied the nominee is employed on a full time basis pursuant to its terms, including an annual salary of $70,000 plus superannuation.
For these reasons the requirements of reg 2.72(11) are satisfied.
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).
As is relevant to the circumstances of the present matter, the applicant must satisfy the requirements of reg 2.72(15). The annual earnings of the nominee are currently $70,000, as reflected in the submitted employment contract dated 22 September 2022 and in the evidence of Mr Agno at hearing. It is common ground this remuneration exceeds the TSMIT and there is no Australian worker performing equivalent work to the nominee in the applicant’s workplace. Additionally, the applicant confirmed the nominee is paid in accordance with the provisions of the Joinery and Building Trades Award 2020. On balance, the Tribunal is satisfied that the annual market salary rate for the nominee is appropriate having regard to this Award and the available market salary information.
Having regard to the evidence, the Tribunal is satisfied that the applicant has determined the remuneration of the nominee in the correct fashion and that such remuneration is appropriate in all the circumstances.
For these reasons, the relevant requirements of reg 2.72(15) are satisfied by the applicant.
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 therefore reg 2.72(18)(b) is applicable.

There is no information before the Tribunal, or in the Department file, to suggest the employment conditions of 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. Additionally, there is no information to suggest the applicant has engaged in any discriminatory recruitment practices.
For these reasons, the requirements of reg 2.72(18) are satisfied by the applicant.
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 IMMI 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the 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.
It is common ground in this review that the labour market testing requirements apply to the applicant. The manner in which labour market testing, in relation to the nominated position, is to be conducted and the types of evidence that must accompany the nomination, are set out in instrument IMMI 18/036.
Mr Agno advised at the review hearing that advertising for the position was undertaken online, in the Jora and Indeed platforms, by the former owner Ms Garcia. Submitted copies of these advertisements confirm the evidence of Mr Agno in this regard. Of note, the Tribunal also accepts that it is difficult to recruit Glaziers in the present domestic labour market.
Having regard to the submitted evidence, the Tribunal is satisfied that labour market testing performed by the applicant was undertaken in conformity with the requirements of instrument IMMI 18/036, there is not a suitably qualified and experienced domestic candidate available to fill the nominated position, and no relevant redundancies or retrenchments have been made.
For these reasons, the labour market testing requirements in s 140GBA are satisfied by the applicant.
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).
It is common ground that the applicant is liable to pay the nomination training contribution charge. The submitted receipt dated 16 July 2019 confirms the applicant duly paid this charge.
Therefore, the requirements of s 140GB(2)(aa) are satisfied by the applicant.
For the reasons outlined 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.
K. Chapman
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)…

[2023] AATA 1770

6 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction