Cut and Roll Pty Ltd (Migration)

Cut and Roll Pty Ltd (Migration) [2022] AATA 2184 (3 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cut and Roll Pty Ltd
REPRESENTATIVE:  Ms Nina Merlino
CASE NUMBER:  1912286
HOME AFFAIRS REFERENCE(S):          BCC2019/1974435
MEMBER:K. Chapman
DATE:3 June 2022
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 03 June 2022 at 6:31pm

;
CATCHWORDS
MIGRATION–nomination – Painting Trades Worker – applicant has the financial capacity to support the nominated position –genuine need to employ a paid employee to work in the position– position associated with the nominated occupation is genuine – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.19

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 3 May 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, Cut and Roll Pty Ltd, applied for approval on 17 April 2019. The applicant nominated Mr Yadwinder Singh (‘the nominee’) in the occupation of Painting Trades Worker, which is coded as number 332211 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant operates a painting business in Geelong, Victoria.
A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant failed to satisfy r.2.72(10)(a), due to a lack of satisfaction that the position associated with the nominated occupation is genuine. On 17 May 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 10 May 2022, the applicant lodged pre-hearing submissions that included ASIC information, the Standard Business Sponsorship approval, financial records, taxation information, payroll records, the position description and job advertising information. All material received has been duly considered by the Tribunal.
The applicant, through its Director Mr Sukhraj Singh, appeared by video before the Tribunal on 17 May 2022 to give evidence and present arguments. Mr Singh, on behalf of the applicant, confirmed he was comfortable participating in the hearing by video. The Tribunal also took evidence by video from the nominee, Mr Yadwinder Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, whilst taking the nominee’s evidence. The nominee confirmed he understood the interpreting service. The applicant was represented by their solicitor (‘the representative’) who attended the review hearing by video and was permitted to make submissions.
The applicant requested time to provide post-hearing material. The Tribunal duly granted time until 31 May 2022. On the due date, the applicant (through the representative) lodged, inter alia, written submissions, the contemporary BAS, the invoice for SAF Levy, commercial invoices, financial statements, taxation records, market salary information and recruitment documentation. All material received has been duly considered by the Tribunal.
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 Painting Trades Worker (ANZSCO 332211) to be performed by Mr Yadwinder Singh, 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 Geelong area 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 r.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 1 April 2019 to 1 April 2024.
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).
The nominee previously held a Subclass 457 visa, nominated by the applicant, but he does not do so at the present time. Therefore, the requirements of reg 2.72(6) and reg 2.72(14) do not apply. In any event, the Tribunal is satisfied the nominee has no accompanying family members (as he is now divorced and it is reasonable not to include his former wife in the current application for nomination) and that he satisfies the English language requirements for the Subclass 482 visa (as demonstrated by the submitted evidence regarding his five years of education conducted in Australia).
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 Painting Trades Worker (ANZSCO 332211). 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 Painting Trades Worker (ANZSCO 332211) 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 Sukhraj Singh explained the context of the nominated full time position, its duties and its critical importance to the operations of the applicant. The applicant undertakes painting work in the commercial and residential property sectors, often in regional Victoria. The business commenced operation in 2016 and has grown year on year, but for a disruption during the onset of the COVID-19 pandemic in Melbourne and its surrounds. Mr Singh explained that the nominee commenced work with the applicant on a part time basis in 2016, before transitioning to full time work under its nomination for a Subclass 457 visa.
Mr Sukhraj Singh outlined the nominee’s duties in a manner consistent with the ANZSCO description for the nominated occupation. Additionally, the Tribunal took the evidence of the nominee, who also explained his duties in a manner consistent with the ANZSCO description for the nominated occupation. The consistency of their evidence is noted by the Tribunal. Mr Sukhraj Singh also advised that the nominee obtained his position with the applicant following a recruitment process.
Mr Sukhraj Singh informed the Tribunal that the applicant’s financial position was strong until the COVID-19 pandemic struck Melbourne and its surrounds. This inhibited activity on most construction and renovation projects at the time. However, with the restrictions now lifted the market is picking up according to Mr Singh. He informed the Tribunal that the applicant’s financial position currently is improving. Submitted financial records, including contemporary BAS for the applicant, confirm this to be the case. Indeed, the submitted BAS for the present financial year indicate the applicant has turnover of approximately $640,000 to date. On balance, the Tribunal is satisfied that the applicant has the financial viability to sustain the nominated position.
The Tribunal canvassed with Mr Sukhraj Singh the reasons for the high number of visa holders employed by the applicant. He informed the Tribunal that given the regional location of the business, the requirement to travel throughout Victoria to conduct painting work and the unwillingness of many domestic painters to be engaged as employees, the applicant must employ visa holders to sustain its business. On balance, the Tribunal accepts the evidence of Mr Singh on this topic and accordingly no adverse inference is drawn regarding the genuineness of the nominated position on this basis.
Additionally, the Tribunal canvassed at length with Mr Sukhraj Singh the matter of the nominee obtaining another nomination with a different painting business in May 2021. Mr Singh acknowledged this to be correct, however he attributed this to the nominee pursuing a new nomination when the applicant’s application for nomination was initially refused by the Department. Furthermore, he noted the nominee had low morale at the time and received bad immigration advice. Mr Sukhraj Singh maintained that the nominee had remained in the employ of the applicant since 2016 and never worked for the rival painting business. The Tribunal also took evidence from the nominee, who confirmed this to be the case. On balance, the Tribunal accepts that the nomination of the nominee by the applicant is genuine and that the pursuit of another nomination by the nominee in 2021 does not reflect adversely on the applicant. The Tribunal forms this view having taken the spontaneous evidence of both Mr Sukhraj Singh and the nominee at the review hearing.
Following careful consideration of the evidence, the Tribunal is satisfied that the nominee will perform the full time role of a Painting Trades Worker (ANZSCO 332211) as defined in the ANZSCO. On balance, 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. Of note, the Tribunal accepts the applicant requires the services of the nominee, so that it can proceed with upcoming painting work. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Painting Trades Worker (ANZSCO 332211) 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 LIN 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 (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 r.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 nominee’s latest employment contract dated 10 May 2022. The Tribunal is satisfied the nominee is employed on a full time basis pursuant to its terms, including an annual salary of $55,000 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 $55,000, as reflected in the submitted employment contract dated 10 May 2022, payslips, taxation records and the evidence of Mr Sukhraj Singh at hearing. It is common ground this remuneration exceeds the TSMIT. Additionally, the evidence of the applicant indicates there is no industrial instrument relevant to the nominated occupation, nor is there an Australian worker performing equivalent work to the nominee in the applicant’s workplace. The submitted market salary material confirms the remuneration of the nominee is within the appropriate range, in the view of the Tribunal.
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 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.
The evidence of Mr Sukhraj Singh at hearing confirms that the applicant has engaged in an ongoing process over a significant time to recruit Painting Trades Workers. He outlined that it is very difficult to secure suitable employees given the impacts of the COVID-19 pandemic, the regional location of the business, the requirement to travel throughout Victoria to conduct painting work and the preference for domestic painters to be engaged as contractors. The Tribunal is satisfied that the applicant advertised the nominated position on two internet platforms in 2019, assessed several applications in response to this advertising and selected the nominee on merit for the nominated position. The Tribunal is so satisfied having regard to the submitted documentary material and the evidence of Mr Sukhraj Singh at the review hearing.
Therefore, 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 17 April 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)…

[2022] AATA 2184

3 June 2022

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