Dari's Kitchen Pty Limited (Migration)

Dari's Kitchen Pty Limited (Migration) [2022] AATA 1095 (26 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dari's Kitchen Pty Limited
REPRESENTATIVE:  Mr Eddy Erny (MARN: 0323211)
CASE NUMBER:  1904423
HOME AFFAIRS REFERENCE(S):          BCC2018/5801216
MEMBER:Stephen Witts
DATE:26 April 2022
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 26 April 2022 at 11:16am
CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – manufacturer – genuine position – comparison of nominated position and ANZSCO occupation description – scope of position and nominee’s experience with company and in position – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10), 2.73
CASE
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 6 February 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 applied for approval on 24 December 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the short term stream to work in the nominated occupation of Manufacturer ANZSCO code 133411.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub regulation 2.72(10) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant, Mr Sean Parker from Dari’s Kitchen Pty Ltd, appeared before the Tribunal on 26 April 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Mr Barry Libardos.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that the applicant has provided it with a copy of the delegate’s decision record dated 6 February 2019. In this decision it was stated that the applicant had sought to meet the requirements for approval for a nominated occupation of Manufacturer in accordance with ANZSCO code 133411 at Dari’s Kitchen Pty Ltd. According to the delegate it assessed the duties and responsibilities of a manufacturer in regard to the planning, organising, direction, control and coordination of the operations of small manufacturing establishments considering that the applicant in this case is a food business and that the applicant had not provided sufficient evidence that the core activities of the business match the duties and responsibilities of the nominated occupation as above. It was noted by the delegate that it had been contended that the applicant’s business is connected to a maker of gourmet dips carrying the brand “Pilpel Fine Foods” but that there was insufficient information regarding this matter.
The Tribunal notes that a submission was provided by the applicant’s representative dated 25 January 2022 providing information regarding the company’s legal and financial position, its sponsorship status, financial statements and company tax returns, and organisational chart, job description, an employment contract, visa history of the nominee, advertisements, and other material.
The Tribunal notes that for the year ending 30 June 2021 the business had total sales of approximately $27 million and profit after income tax of approximately $5 million and that to the end of financial year 30 June 2020 it had total sales of approximately $22 million and a profit after income tax of approximately $4 million.
The Tribunal notes that an organisation chart was provided which indicates that apart from a managing director and a chief executive officer there are employees in every state in Australia including in administration, accounts, and the marketing department, and various other production-based employees including manufacturing employees and labelling and packaging employees.
The Tribunal notes that the following job description was provided in regard to the nominated occupation:
“Responsibilities:
- Responsible for finding opportunities for new products to enable business development and
suggesting new manufacturing processes to assist with the new products.
- Conducting research to develop new business plans and procedures to help with the
operational, marketing, human resource and pricing aspects of products
- Ensuring statutory requirements are adhered to
- Monitoring production and distribution of products
- Ensuring clean and hygienic environment is maintained and quality of products is maintained
- Supervising employees and providing training where relevant
- Processing orders for raw materials, supplies and packaging
- Overseeing provision of quotes and arranging contracts with clients
Qualifications:
- At least 5 years’ experience in manufacturing
- Ability to work under minimal supervision and as part of a team
- Strong organisational skills
- Able to analyse drawings and specifications
- Ability to multitask”
The Tribunal notes that also provided was a list of responsibilities and qualifications for the role of manufacturer under ANZSCO code 133411 noting that the role consists of planning, organising directing, controlling and coordinating the operations of small manufacturing establishments and that the skill level required is equal to a bachelor degree or higher, or at least five years of relevant experience, and that one in three workers would have a certificate III or IV level qualification instead of a university degree:
“identifying business opportunities, devising new manufacturing processes and determining products
to be manufactured
developing business plans and implementing operational, marketing, human resource and pricing
procedures
researching and implementing regulatory and statutory requirements affecting manufacturing
operations and the environment
directing the activities of production, warehouse, distribution and other operating units
maintaining quality control systems for manufacturing, waste disposal, delivery and other
procedures
coordinating orders for raw materials, supplies and equipment, and arranging packaging, delivery
and wholesaling of products
overseeing the coordination of after-sales service
overseeing the provision of quotes for the manufacture of specialised goods and arranging
contracts with customers
may devise and oversee the implementation of production run schedules”
The Tribunal notes that a contract of employment for the nominee was provided dated 29 November 2018 denoting a salary of $55,000 plus superannuation.
The Tribunal notes that information was provided indicating that the nominee was a dependent student visa holder for some time, he was then on a dependent on a temporary graduate 485 visa.
The Tribunal also notes that material was provided in regard to advertisements placed stating that two advertisements were placed on national job portals for at least four weeks on Jora and Indeed recruitment websites.
The Tribunal notes that a submission was provided in regard to the application stating that the nominator is a company that makes various dips, soups, and table garnished hummus. It was stated that the company is the leading chilled soup brand in Australia and that its products are stocked across Australia with companies like Coles and Woolworths. It was stated that the company was first incorporated in 2005 by its current owners Dari and Yehiel Kaplan. It was stated that it was a food catering business supplying two major grocery retailers and that it employs 65 people across production, quality management, operations, accounts, administration, and sales.
It was stated that the nominated position is expected to improve the manufacturing processes of the company’s core food products and that the responsibilities of the manufacturer cannot be performed by any of the existing positions. It was stated that the nominee has substantial experience of manufacturing works in the food industry and that the nominee has been working with the company since 2013 and that the nominee is the most suitable person for the nominated position.
It was further stated that the nominee spends approximately 30% of his time in the role directing production activities, 20% engaging quality control and waste disposal, 15% engaged on raw materials, supplies, equipment and packaging, 15% on ensuring regulatory and statutory requirements 10% on reviewing and improving the manufacturing process, and 10% on after sales service and other tasks.
The Tribunal notes are also provided was records of a production meeting dated 14 April 2022 attended by the nominee.
At the hearing the Tribunal had a discussion with the nominator, Mr Parker, and the nominee, Mr Libardos, regarding their applications.
The nominator stated that the nominee was the Manufacturing Supervisor for the business and that he reported to an Operations Manager who then in turn reported to him as the General Manager of the company. He stated that the position of manufacturing supervisor leads a team of seven direct reports that are responsible for different aspects of the manufacturing lines and products. He stated that the company has been growing by 30% per year over the last two or three years and that at the moment it employs more than 90 people as this is the busiest time of year for the company moving into winter when the company’s products are most in demand. He stated that there are 66 employees involved in the manufacturing process that are led by the manufacturing team as outlined above. He stated that the nominee directs the manufacturing team and that this role is particularly busy and important at the moment as the company has significant labour requirements in the manufacturing part of the business that the supervisor is managing and that the company is also investing in new areas of automation and new equipment which the manufacturing supervisor needs to overview and also that they are preparing to open a new warehouse and distribution facility over the next few weeks which the manufacturing supervisor will also need to assist in coordination as this role is responsible for the production of the company’s products. He stated that this business is a fast-moving consumer business and that it works to a principal of 98% of goods arriving on time to clients including Coles, Woolworths, Aldi, and other suppliers. He stated that this is an important position, and that the nominee has been working for the company now for nine years and that he is a valuable and talented member of the senior staff.
He stated that the salary for the nominee had recently been increased to $62,000 plus superannuation.
The nominee stated that he first came to Australia in 2013 on a dependent student visa held by his wife and that she studied for and completed a bachelor level qualification in accounting in 2018 and that he started work at a manufacturing company manufacturing plastic fabrications from January until July 2013 when he started work with his current employer, the nominator, working in the cool room and then he gradually worked his way up in the company until the role that he is currently undertaking. He stated that he has been on dependent student visas or dependent 485 visas since his arrival here in Australia. He stated that prior to this he studied for and received a Bachelor of Nursing in 2009 back in his home country and then worked in his family’s business in a rice mill prior to him coming to Australia.
The Tribunal had a detailed discussion with the parties regarding the duties and responsibilities of the nominee comparing his daily duties and responsibilities with those of manufacturer under ANZSCO code 133411 and finds that the role of the nominated position is genuine.
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 Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant as the person who will work in the occupation.
The nomination was made using the approved form and the fee has been paid. The applicant has identified Mr Libardos in the nomination. The nomination includes the location of the business, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Manufacturer (ANZSCO 133411).
For these reasons the requirements of reg 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 evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.
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 provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved.
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.
The Tribunal is satisfied that there is no evidence that the applicant has any outstanding debt under 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: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of r.2.72(6) and r.2.72(14) do not apply.
For these reasons the requirements of r.2.72(6) are met.
Further, the Tribunal was provided with evidence that the nominee satisfied the English language test requirements.
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, IMMI 18/051 Specified Occupations. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal is satisfied that IMMI 18/051, in force at the time of application, included the occupation of Manufacturer – ANZSCO Code: 133411.
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 applicant provided evidence through the recent contract of employment that the nominee will be employed as a full-time Manufacturer – ANZSCO Code:133411 and a contract salary of $62,000 plus superannuation.
The Tribunal also finds that the duties performed by the nominee, which were confirmed in evidence are consistent with the tasks and duties provided in ANZSCO Code: 133411.
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 18/051. 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 provided evidence through the recent contract of employment that the nominee will be employed as a full-time Manufacturer – ANZSCO Code:133411 on a salary of $62,000 plus superannuation.
For these reasons the requirements of r.2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where 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 instrument IMMI 18/033: 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 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: 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).

The Temporary Skilled Migration Income Threshold (TSMIT) is currently AUD53,900 and the nominee is contracted to be paid $62,000 for the nominated occupation of Manufacturer– ANZSCO Code: 133411, which it was submitted is greater than the award rate.
Further, the Tribunal is satisfied that the wage rate for a manufacturer as prescribed in the Modern Award, is less that the salary of $62,000 that will be paid to the nominee by the applicant.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
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 not apply.
For these reasons the requirements of r.2.72(18)(a) and 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 position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI: LIN 18/036. 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 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: LIN – 18/036 that includes the following requirements:
“8        The advertisement of a nominated position
(1)    This section is made under subsection 140GBA(5) of the Act.
Language
(2)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.
Method
(3)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:
(a)    on a recruitment website with national reach in Australia; or
(b)   in print media with national reach in Australia; or
(c)    on radio with national reach in Australia; or
(d)   if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.
(4)    The following details of the position must all be included in the advertisement:
(a)    the title or a description of the position;
(b)   the skills or experience required for the position;
(c)    the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;
(d)   the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.
Duration
(5)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a)   print media;
(b)   radio;
(c)   website.”
The Tribunal is satisfied that the applicant has undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 that applied at the time of the engagement of the nominee, which was supported by evidence provided to the Tribunal prior to hearing. In this regard, the position of Manufacturer – ANZSCO Code: 133411 was advertised for 4 week periods in appropriate national job portals which the Tribunal accepts are national distributed print media that satisfies the expressed criteria.
For these reasons, the labour market testing requirements in s.140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The Tribunal notes that this condition has been met as required.
For these reasons the requirements of s 140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Stephen Witts
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 1095

26 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction