Financier Software Pty Ltd (Migration)

Financier Software Pty Ltd (Migration) [2022] AATA 3008 (28 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Financier Software Pty Ltd
CASE NUMBER:  1912885
HOME AFFAIRS REFERENCE(S):          BCC2019/2278453
MEMBER:Alan McMurran
DATE:28 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 28 July 2022 at 3:37pm

CATCHWORDS
MIGRATION – nomination – Medium-term stream– Accountant (General) – nominee does not perform a majority of the tasks as described in ANZSCO for the nominated occupation of Accountant (General) – position associated with the nominated occupation is not ‘genuine’ –– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 359
Migration Regulations 1994, rr 2.72, 2.73, 5.19
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 23 May 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 10 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 applied for approval on 26 April 2019. 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 nominated occupation is for a Subclass 482 visa in the Medium-term stream. The nominee is a 28-year-old Malaysian citizen, Xin Xiang Ong, currently offshore on a Subclass 601 Electronic Travel Authority visa (“the nominee”). The nominee has been nominated by the applicant, Financier Software Pty Ltd t/as Castaway Forecasting, for the occupation of Accountant (General) ANZSCO 221111.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(10)(a) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant appeared before the Tribunal on 26 July 2022 to give evidence and present arguments. The applicant appeared by its Chief Executive Officer, Mr Michael Ford “the CEO”), and its Chief Operations Officer, Ms Jo Buchanan (“the COO”). The hearing was conducted by video in accordance with the Tribunal’s current Practice Direction for providing a mechanism of review that is fair, just, economical, informal, and quick. No concern was raised as to the format for the hearing or the matter proceeding remotely. The applicant’s representatives were duly authorised to appear, and the CEO indicated that they were ready to proceed and did not require an adjournment or time to produce further documentation or information.
The hearing was conducted as a combined hearing with Tribunal case number 1910135, involving the same applicant and nominee, and for the same nominated occupation. The applicant consented to the cases being heard together.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 has had regard to the regulation requirements, including whether the position associated with the nominated occupation is ‘genuine’. 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 Tribunal has no discretion in relation to the application of the Regulations and the requirements, unless specified otherwise by the Act or Regulations themselves.
If any requirement in the regulations is not met, the Tribunal does not have to consider any other remaining requirements.
A copy of the relevant regulations is annexed to this decision. 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 (“LMT”) requirements in s 140GBA for recruiting the nominee must be met.
The Tribunal has had regard to the information available including the Department file with the application, and the Tribunal file and submissions, the Act, Regulations, and Department Policy (PAM 3), and the evidence available from the witnesses at the hearing. The applicant provided a large bundle of documents and information both to the Department, and subsequently to the Tribunal, which have been considered. The individual documents submitted are not listed unless relevant and referred to for the purposes of this decision.
The applicant has provided the Tribunal with a copy of the Department’s decision for review and responses to an invitation sent on 28 March 2022 to provide updated information to the Tribunal under s.359(2) of the Act. Multiple submissions were received on 11 April 2022.
Background
The company was registered on 2 November 2009 and is actively trading from an address in Sydney. The company has approximately 8 employees at the time of decision, including the nominee who is working as a contractor from Malaysia. The 2019 organisation chart has changed, and 4 employees have now left the business. It is currently recruiting other staff and anticipates having a staff roll of approximately 20 within the next 6 months. According to ASIC, the company has two current directors and is wholly owned by two separate corporate entities. It states its turnover in April 2019 at AUD1,800,000.00,and less than AUD2,000,000.00.
The applicant is a standard business sponsor (SBS) approved by the Department for a 5-year period from 21 February 2019 to 21 February 2024. The applicant seeks to continue to sponsor the nominee for the nominated occupation. The applicant has not sought any assistance with lodgement of its applications and does not purport to be experienced or expert in the migration space.
The applicant conducts a business which describes its software product, Castaway, as “ a comprehensive and intelligent business modelling and cashflow forecasting tool” [1]. The applicant describes itself as building software “that helps businesses grow”. The applicant owns the software which it has developed, and since 2010 now exports the product around the globe. The applicant supplies the software to 80% of the top accounting firms as a tool for forecast modelling, which it describes as a specialist skill, and which skill is not part of the general accountant’s usual skillset. Approximately half its customers are SME’s and end-user entities.
Two applications for review
[1] Applicant’s website: >
The applicant brought this application in respect of the nominee on 26 April 2019, following a prior sponsorship application made 12 March 2019 for the nominee and in respect of the same nominated occupation. The prior application[2] was refused by the Department on 23 April 2019, for a different reason, and which decision is also the subject of an application for merits review in the Tribunal.[3] That application for review was also heard by the Tribunal on 26 July 2022 in conjunction with these proceedings.
[2] BCC20191239752
[3] T case number 1910135
Both review applications are validly lodged, and each case has the same rights to merits review, at law comprising two separate applications. To the extent, however, the information and evidence in one proceeding also arises in the second proceeding (1910135), the Tribunal may refer to the same information and rely upon it. The Tribunal explained to the applicant that each review would be considered on its merits. The applicant did not object to the process or require separate hearings in respect of each matter. Where it is not necessary to do so, the Tribunal does not repeat the facts and reasons in each decision record, separately made, but may refer to them.
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 (26 April 2019), that is, LIN 19/048 (Compilation No.1) in force from 21 March 2019. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation, Accountant (General) ANZSCO 221111 is on the Medium and Long-term Strategic Skills List current at the time of application, and the nominated occupation has been specified in accordance with the relevant legislative instrument. The applicant has not sought to change the occupation as nominated and seeks to proceed on the basis that the specified occupation as nominated corresponds to the ANZSCO code.
The Tribunal finds that 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.
Policy sets out that the requirement that the position nominated must be genuine requires not that the position is genuine in the sense of ‘needed’, or in the dictionary sense of ‘real’ or ‘exact’, but rather that the position associated with the nominated occupation must actually exist and be what the position purports to be with the description of the nominated role, and in consideration of the ANZSCO guide aligned with the submissions and evidence.
Decision-makers are encouraged to consider whether the person will actually be performing the stated tasks when taken in the context of where the position will be based and will not primarily be undertaking duties at a skill level different to the skill level of the nominated occupation. Bearing in mind that the issue of ‘genuineness’ is not a defined term as such, and in applying its ordinary meaning to the objective information available, matters for consideration might include, non-exhaustively:
·Business context, including size and location
·Scope of the business and its operations – e.g., manufacturer, retailer, wholesaler, exporter, what it does
·Other existing or similar employees in the role
·Whether the nominee will undertake a significant majority of the tasks as nominated
·The nominee’s employment contract provisions, any agreement, and duty statement provided
·How the applicant describes the role in practice
·Supporting evidence of the role performed e.g., work samples, reports, oral evidence
·Financial performance including expansion or contraction in the business
·The recruitment process, and whether transparent as to candidates interviewed or rejected and their experience
For this application, using the ANZSCO guide in order to understand the tasks that an Accountant(General) may undertake, ANZSCO describes the occupation thus:
2211 Accountants
Accountants provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.
Tasks Include:
Occupations:
- assisting in formulating budgetary and accounting policies
- preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
- conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
- examining operating costs and organisations' income and expenditure
- providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
- providing financial and taxation advice on business structures, plans and operations
- preparing taxation returns for individuals and organisations
- liaising with financial institutions and brokers to establish funds management arrangements
- introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
- maintaining internal control systems
- may appraise cash flow and financial risk of capital investment projects
- 221111 Accountant (General)
At the hearing, the Tribunal discussed the applicant’s evidence in support of the position. The Tribunal asked a number of questions of the CEO in evidence, firstly about the business context, and then as to the work being performed by the nominee. That discussion is outlined below.
The Hearing
The CEO described the nature of the business as creating software specialised for budgeting purposes and creating business models for customers for financial forecasting. He explained the business has been selling the software which the CEO himself created, since 2010. The CEO had a background as a senior accountant, where he had worked for a period in excess of 12 years with KPMG.
He explained that at least half of the applicant’s customers are accountants including large and medium-sized firms. He said the applicant also sells software and consultancy services to smaller end-user businesses (SMEs). He said the applicant’s software is an internal tool, built around traditional accounting concepts such as double entry bookkeeping, but taking up the space where software such as Excel and Xero end. He explained that they not only sell the software, but train customers how to use it, and support them in relation to creating successful forecasting outcomes. He explained that financial forecasting is a specialty expertise, unfamiliar to many accountants and not part of formal training. It is usually acquired as a skill through on-the-job experience and training. Some larger firms have developed their own financial forecasting teams. He said accounting forecasting allows the trained accounting specialist to utilise financial modelling as a tool for businesses to predict their financial futures more accurately.
He explained that the applicant “stands in the shoes” of the internal accountant who is usually tasked with creating the budget for the enterprise. The applicant’s software facilitates the forecasting process through accepting raw data and financial information which it then converts into sophisticated reporting, enabling more accurate budgeting and anticipated financial outcomes. He said the applicant’s product is not available elsewhere as a “three-way modelling tool” for more accurate forecasting. The applicant uses a sales team and provides consultancy services through the CEO himself, the nominee, and one other senior staff member. He said he has trained the nominee since she commenced as a graduate employee in May 2017.
The nominee departed Australia in June 2019 following the expiry of her subclass 485 visa. He said the nominee, however, is still employed by the applicant through a contracting arrangement with a work placement contractor in Malaysia, where the nominee is currently located. Despite being able to work successfully and remotely offshore, the CEO prefers that the nominee can work under the applicant’s direct supervision and control in Australia and is still pressing that she becomes eligible for the visa to enable her to work locally.
He said the applicant provides most of its business sales and support through virtual communications and webinars. By this method, the nominee is still able to retain her role supporting customers and teaching the operation of the Castaway software, which she herself has learnt. The CEO said the nominee has acquired particular skills, is a qualified accountant herself, and has particular aptitude for the role. He said it has been difficult to find suitable candidates to fill the sales support role which was described in the application to the Department as “a financial forecasting support consultant”.
He said it had taken approximately six months to initially train the nominee in the software. He said she was first recruited in the software support role to answer customer enquiries and was not acting as an accountant. This period was used to train her in knowledge of the software for the role. He said she was trained entirely by himself (the CEO) and that after six months she had “earned the right to do more complex work”. He said he had supervised her, together with the other customer support employee, and that there are currently only three of them performing the role in customer support. He said it is not economical for him to maintain that support role himself on a permanent basis and he needs the nominee, or a suitable applicant, to delegate that role. He said it has been a successful experience training the nominee who has now acquired the necessary skills to deal with more complex sets of accounts, and for utilising the software to create a chart of accounts, which the customer can successfully then utilise for financial forecasting. He explained that the nominee is capable to assist customers to create their own customised dashboards and chart of accounts with information for financial forecasting.
The Tribunal and the CEO went through each of the tasks illustrated in the ANZSCO description for the role.
The nominee’s role described
The applicant explained that the software does the work from data provided by the customer to formulate budgetary and accounting policies. The software does the work of the internal accountant, otherwise completing financial statements and budgeting from available data. The CEO conceded the nominee is not involved in formulating accounting policies for the entity, although laterally that description might apply to the successful application of the software. It does not however emanate from the nominee herself.
He explained that the nominee trains the internal accountants to produce financial statements from the software itself. Information is then prepared for presentation, not by the nominee, but by the internal accountants to respective boards of directors, or as may be required. The nominee herself is not involved in the formal presentation process to directors, management, shareholders, or governing and statutory bodies. The nominee only deals with the client contact, usually the internal accountant, not directly with other management.
He said the nominee is not involved in financial investigations, as the applicant is not engaged as a principal advisory service. He said the nominee’s role is not to examine operational costs, but rather to show accountants how to use the applicant’s software to report on margins and create customised dashboards for themselves, which provides the customer with significant flexibility to enable intelligent financial decision-making as a consequence. He said the software in effect “picks up where Excel finishes”. He said the nominee does not provide financial accuracy reporting, does not engage in taxation advice, prepare taxation returns for lodgement, nor advise in insolvency, nor provide liaison with financial institutions or brokers. The nominee does not provide auditing services, risk management, or compliance advice.

He said the nominee’s primary role on a day-to-day basis is introducing, training, and advising on customer software for computer-based accounting systems and managing and reporting cash flow outcomes, and showing customers how to improve results based on forecasting. The nominee plays an important support role in this regard.
At the end of the discussion, the CEO agreed that the description of the position was more aligned to that of a management accountant or senior professional in a customer service role than that of a general accountant, as described by ANZSCO. The Tribunal put to the CEO that it appeared from the oral evidence that the nominee was not performing a majority of the tasks as outlined in the ANZSCO guide. The CEO accepted that the role for the nominee as it is presently being performed, and he anticipated will continue, when discussed with the Tribunal (as set out above) in the context of the actual tasks, was not the role as nominated. The CEO conceded candidly that he should have “paid more attention” to the actual tasks involved, when considering the position nominated and as described by ANZSCO as the guide.
The COO was invited to make any comments or additional submissions following the evidence from Mr Ford. The COO, Ms Buchanan, elected to rely on the applicant’s evidence about the occupation and the operations of the business as presented by Mr Ford, and had nothing further to add.
Neither witness sought nor asked for any additional time to make any post-hearing submissions or to provide further information.
Findings
The Tribunal has considered the business context explained, and the fact its principal operation is to sell its software product, essentially to firms of accountants and internal accountants operating in small to medium businesses.
The Tribunal finds on the evidence that the applicant’s business is one of selling specialist accounting forecasting software and providing training to other accountants. Because of the unique nature of the product, it requires significant customer support and analysis to enable customers, usually untrained in accounting forecasting, to understand the software and to establish reliable and effective forecasting dashboards for themselves, utilising the software tool in order to do so. The Tribunal has listened carefully to the explanations provided as to the nominee’s work and the support role that she provides and the actual tasks that she performs remotely.
The Tribunal finds it is satisfied on that objective evidence, and on which it places significant weight, that the nominee does not perform a majority of the tasks as described in ANZSCO above, for the nominated occupation of Accountant (General) ANZSCO 221111. The Tribunal finds that of all the tasks listed, the only one identified by the CEO where most of the nominee’s time is actually spent is on “managing and reporting on cashflow”, which as described by the CEO, fits best in the context of the applicant’s business.
The Tribunal finds that the role nominated is not the role as described by the evidence, nor as described in the Offer of Employment produced, which itself describes the position as that of “Software Support & Junior Consultant”[4], and that the position associated with the nominated occupation is not ‘genuine’, in the sense that it is not the position of an Accountant (General).
[4] See 1910135 at par 14
For these reasons the Tribunal finds that the requirement of reg 2.72(10)(a) is not met.
Conclusion
Where any requirement under the Act or Regulations has not been met, the Tribunal is not required to consider the remaining criteria for the nomination to be approved. Nor does the Tribunal have any discretion to disregard the legislative requirements for reasons not specified in the Act or Regulations.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alan McMurran
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 3008

28 July 2022

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Immigration

Administrative Law

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Judicial Review

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Standing