Enhanced Finance Solutions Pty Ltd (Migration)

Enhanced Finance Solutions Pty Ltd (Migration) [2022] AATA 1232 (16 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Enhanced Finance Solutions Pty Ltd
CASE NUMBER:  1821931
HOME AFFAIRS REFERENCE(S):          BCC2018/2412432
MEMBER:Nicola Findson
DATE:16 February 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 16 February 2022 at 4:53pm
CATCHWORDS
MIGRATION–nomination – Human Resources Manager –applicant has a genuine ongoing need for the position of Human Resources Manager – position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 years – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359, 360
Migration Regulations 1994, 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 20 July 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 5 June 2018. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and r.2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The applicant is a proprietary limited company that operates with ACN 120 507 664, trading as Enhanced Group in Melbourne, Victoria. It has nominated the position of Human Resources Manager for approval.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(1))(a), because the delegate was not satisfied that there was sufficient information to demonstrate that the position associated with the occupation was genuine.
The applicant was represented in relation to the review.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of material provided to it during the review process, pursuant to s.360(2)(a) of the Act.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s.140GBA must be met.
On 5 August 2021, the Tribunal wrote to the applicant, via the agent, to invite it pursuant to s.359(2) to provide current and updated information demonstrating that the applicant met the criteria in r.2.72 and s.140GBA at the time of the Tribunal’s consideration. It gave examples of the kind of information that would assist it to assess these provisions. The applicant responded by the (extended) due date, as well as subsequently during the review process, and provided to the Tribunal additional and updated material in support of its application, including but not limited to:
·ASIC and ABN records;
·Financial Report for the year ended 30 June 2020;
·Business Activity Statements for the quarters ended 31 December 2019 to 31 March 2021;
·Enhanced Group Business Plans;
·Position Description for the nominated position;
·Evidence of labour market prospects, advertising for the nominated position (and other positions within the business), as well as remuneration survey data for Human Resource Manager positions;
·Banking Finance and Insurance Award 2020 and pay guide;
·Current resume of the nominee;
·Contract of Employment between the applicant and nominee dated 14 May 2018;
·Statutory Declarations of the nominee declared on 28 September 2021;
·Statutory Declaration of the majority shareholder and Director of the applicant, Mr Mark Russell, declared on 6 October 2021, addressing the genuine need for the position within the applicant’s operations;
·Bundle of letters of support from business clients of the applicant company setting out, among other things, the skills and experience of the nominee as well as the nominee’s work with the applicant; and
·Notification of approval as a standard business sponsor dated 18 July 2018.
A comprehensive legal submission also accompanied the additional material. The submission provides detailed information about the applicant’s operations as well as a focussed response to the concerns set out by the delegate in the decision record. The submission also sets out, in detail, the duties of the position performed by the nominee within the applicant company.
The applicant’s website, which the Tribunal has accessed, as well as material provided to the Tribunal indicates that the applicant company was first registered on 3 July 2006 as a financial services company providing financial, leadership and management education and support to small businesses.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied from its review of the Department’s file that:
·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1);
·the nomination was made using the approved form and fee, as per r.2.73(3), (4) and (5);
·the nomination was not required to be accompanied by the applicable training contribution charge, as per r.2.73(5A) as it was lodged before 12 August 2018;
·the nomination was made in the Short-term stream as the nominated occupation of Human Resources Manager is a short term specified skilled occupation in the relevant instrument, IMMI 18/048, as per r.2.73(6);
·the applicant identified the nominee, Ms Sian Stephens, in the nomination, as per r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6 digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, as per r.2.73(9);
·the nomination included written certification that the applicant had not engaged in conduct that contravenes s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.
For these reasons, it is satisfied that 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 Tribunal has checked the Department’s records and is satisfied that the applicant is approved as an SBS until 18 July 2023.
For these reasons, the Tribunal finds that the requirements of r.2.72(5) are met.
Payment of debt mentioned in s.140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act.
There is no evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. As discussed below, the Tribunal is satisfied that the applicant is not liable to pay a nomination training contribution charge.
For these reasons, the Tribunal finds that the requirements of r.2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl.482.223 (if the nomination is in the Short-term stream) or cl.482.232 (if the nomination is in the Medium-term stream): r.2.72(14).
The Department’s records indicate that the nominee, Ms Sian Stephens, has never held a subclass 457 or 482 visa.
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.
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 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Human Resources Manager (ANZSCO 132311) is specified in the Short-term stream in IMMI 18/048. The Tribunal is further satisfied that the occupation of Human Resources Manager is not subject to any of the occupational caveats set out in the notes to that instrument.
For these reasons the requirements of r.2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal accepts from the material provided, including the contract of employment between the nominee and the applicant, that the position is a full time one. Accordingly, it finds that r.2.72(10)(b) is met.
As noted earlier in this decision record, the delegate was not satisfied that there was sufficient information to demonstrate that the position associated with the occupation was genuine. The delegate was of the view that there was insufficient evidence to show that the business turnover of the applicant company was at level that could financially support the salary of the position, or to substantiate the planned business activities and strategies for expansion, so as to justify the need for the nominated position.
It is submitted on behalf of the applicant, and accepted by the Tribunal, that the considerations and conclusions of the delegate do not accord with the Department’s policy for assessment of the genuineness criterion. It is submitted that, in accordance with Departmental policy, the focus of the ‘genuineness’ assessment is whether the position genuinely and truly exists, not whether it is needed and not whether it is commercially sound to engage a person in the position. It is submitted that this position is being nominated in the context of a highly specialised and tech-focussed finance business and that the position associated with the occupation of Human Resources Manager is a genuine position. It is submitted that the primary duties of the position, as described in the nominee’s contract of employment and position description, align with the ANZSCO description of a Human Resources Manager, and that they have been, and will continue to be, performed by the nominee who is highly skilled and experienced in the role. It is submitted that the position is a highly skilled position which fits within the scope of the activities of the applicant company, which has a broad service offering as a specialised financial services provider.
The Tribunal has compared the position description for the nominated position with the duties set out for a Human Resources Manager in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary. Taken together with written evidence provided to the Tribunal, including a statement declared by the applicant’s Director, Mr Mark Russell, that the nominated position is responsible for: developing procedures for recruitment, training and promoting a collaborative workforce as well as job descriptions and performance review regimes; supervising and monitoring staff members, and reporting to management about staff performance issues; developing the mission, vision and value statements for the business; promoting close working relationships, cross pollination of knowledge and collaboration amongst staff; establishing delegation of responsibilities to ensure people management knowledge; building training and development platforms to meet business needs; managing terminations, retrenchments and post-employment responsibilities to safeguard confidentiality of the company and individuals; safeguarding the company’s position in Victoria and building knowledge of differences across the States and Territories; ensuring safety for the workforce by engaging with the Australian codes of practice for occupational health and safety, fire and rescue; liaising with relevant authorities to ensure that the company is in compliance with workplace laws and regulations; developing strong working relationships internally and externally for the benefit of the key functions of the business; establishing workable procedures that relate to all key objectives of the role and the human resources function; and being a strong leader of knowledge in the continued development of the human resources function, as well as an outline of tasks the nominee has undertaken since she commenced working for the applicant in October 2018, the Tribunal is satisfied that the duties of the nominated position closely align with those of a Human Resources Manager as set out in ANZSCO.
The Tribunal is also satisfied, from the evidence before it, that the applicant has a genuine ongoing need for the position of Human Resources Manager. It gives weight to the evidence before it that the position is critical to the continued operation and growth of the business, particularly as it, as well as its small business clients, emerge out of the COVID-19 restrictions and resume business as usual.
The Tribunal is therefore satisfied that the position associated with the nominated occupation is genuine and that r.2.72(10)(a) is 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 18/035. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (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 Tribunal is satisfied that the nominated occupation of Human Resource Manager is not specified in IMMI 18/035, and that the applicant has provided a copy of the contract of employment between it and the nominee dated 14 May 2018, which remains current.
For these reasons, the Tribunal finds that 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 ($53,900). 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 current employment contract provides that the nominee will be paid a base salary of $85,000 per year, plus superannuation. 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) applies. There is no evidence before the Tribunal to indicate that the applicant has engaged in discriminatory recruitment practices and thus the Tribunal finds that r.2.72(18)(b) is met.
Nor is there anything to indicate that the nominee’s employment conditions (other than in relation to earnings) will be less favourable than those for an Australian equivalent employee(s).
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(18)(a) 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 18/059 (this provides that, for nominations lodged after 18 March 2018 but before 12 June 2018, the period is 12 months prior to the nomination application being lodged).
In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of LMT that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
The Tribunal notes that for nomination applications made before 12 August 2018, it is not clear from the terms of s.140GBA(3)(a) itself whether this provision requires testing to have taken place within the prescribed period prior to the time the nomination is made, or within the prescribed period prior to the time a decision on the nomination is made (in this case, by the Tribunal). However, given evidence of this LMT must accompany the nomination (s.140GBA(3)(b)), it appears that the relevant period should be determined by reference to the date that the nomination was made.
Sections 140GBA(6)(a)(i) and (ii) provide that the LMT evidence must include details of any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the applicant and details of fees and other expenses paid or payable for that advertising.
The Tribunal is satisfied that the exemptions relating to major disasters and skill and occupational exemptions in ss 140GBB-140GBC do not apply in this case, nor the Minister has determined that LMT in this case would be inconsistent with a specified international trade obligation. Accordingly, the applicant must satisfy the LMT requirements above
The Tribunal has reviewed the information provided in, and with, the nomination application made on 5 June 2018, and is satisfied that:
·LMT was undertaken for between 21 days to 3 months from 5 April 2018, which is within the specified period in ss.140GBA(3)(a) and (4);
·The position was advertised on the Jobactive.gov.au as well as the Indeed.com.au websites and copies of their lodgement and invoice details were uploaded. The advertisements were in English and identified the applicant as well as a salary range. The Tribunal is satisfied that this meets ss.140GBA(3)(b) and (5)(a);
·The applicant indicated that there were 52 responses to the advertisement, none of whom were suitably qualified because they lacked relevant qualifications and/or sufficient experience. The Tribunal is satisfied that this establishes that s.140GBA(3)(d) is met;
·The applicant further indicated that it had not retrenched or made redundant any employees in the 4 months prior to undertaking LMT, and the Tribunal therefore finds that s.140GBA(4A) is not relevant in this case.
For these reasons, Tribunal is satisfied that the labour market testing requirements in s 140GBA are met.
In conclusion, the Tribunal is satisfied that:
- LMT was undertaken in the specified period, as per s.140GBA(3)(a) and (4);
- It was accompanied by evidence of the testing as required by s.140GBA(3)(b); and
·there was no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position, as per s.140GBA(3)(d).
The Tribunal is further satisfied that the applicant indicated in the nomination application that no Australians or permanent residents were made redundant/retrenched from the nominated occupation, and therefore s.140GBA(4A) does not apply in this case.
For these reasons, the Tribunal finds that the labour market testing requirements in s.140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s.140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s.7 of the Migration (Skilling Australians Fund) Charges Act 2018, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s.140GB(2)(aa).
The Tribunal finds that as the nomination in this case was lodged on 5 June 2018, prior to 12 August 2018, the applicant is not liable to pay a nomination training contribution charge.
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.
Nicola Findson
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 1232

16 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Standing