Flesfadar Pty Ltd (Migration)

[2024] AATA 2371

Flesfadar Pty Ltd (Migration) [2024] AATA 2371 (13 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Flesfadar Pty Ltd

REPRESENTATIVE:  Mr Felix Carao (MARN: 1069354)

CASE NUMBER:  2119126

HOME AFFAIRS REFERENCE(S):          BCC2021/2003542

MEMBER:Sheridan Aster

DATE:13 June 2024

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 13 June 2024 at 1:59pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – graphic designer – genuine position – limited design requirements for school, sports and corporate uniforms – duties of position and work samples – design and technical skills – importance of position for applicant company’s revenue – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73

CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 November 2021 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).

2. The applicant applied for approval to nominate Ingrid Johanna Rodriguez Buitrago to work in the occupation of graphic designer on 21 October 2021. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not meet reg 2.72(10)(a), which requires the Minister to be satisfied that the position associated with the occupation is genuine.

4. 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

5. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

   The nomination must comply with the prescribed process

6. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

7. Having reviewed the Departmental file, the Tribunal is satisfied that:

   ·The person is nominating an occupation under s 140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1);

   ·The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);

   ·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);

   ·The nomination is in the Short-term stream and the occupation is a short term specified skilled occupation: reg 2.73(6);

   ·The applicant has identified the nominee in the nomination: reg 2.73(8);

   ·The nomination includes 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, and any other specified information: reg 2.73(9);

   ·The nomination includes written certification that the person has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);

   ·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);

   ·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and that the position is in the person’s or an associated entity’s business: reg 2.73(14).

8. For these reasons the requirements of reg 2.72(3) are met.

   No adverse information known to Immigration

9. Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

10. There was no adverse information provided in the Departmental file and the Tribunal infers that this is because there is no adverse information know to Immigration about the applicant or a person associated with the applicant.

11. The requirement of reg 2.72(4) is met.

    Nominator is a standard business sponsor

12. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

13. Flesfadar Pty Ltd was approved as a standard business sponsor on 5 August 2021, valid until 5 August 2026. The requirement of reg 2.72(5) is met.

    Payment of debt mentioned in s 140ZO

14. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

15. There is no record of an outstanding debt on the Departmental file, and the Tribunal infers that there is no relevant debt. The requirement of reg 2.72(5A) is met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

16. 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. The nominee is not the holder of a Subclass 457 or Subclass 482 visa, therefore the requirements of reg 2.72(6) and reg 2.72(14) do not apply.

    Specified occupation

17. 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. In this case, Migration Instrument LIN 19/048 applied. The occupation must also apply to the nominee in accordance with the instrument.

18. Graphic designer and its six-digit code are specified in LIN 19/048. The occupation is not subject to an applicability caveat.

19. For these reasons the requirements of reg 2.72(8) are met.

    Position must be genuine and full-time

20. 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.

21. Flesfadar Pty Ltd trades as CFS Gear Darwin. The website advertises corporate, sports and school uniforms along with promotional products. The services include a dedicated graphic designer who “will transform your ideas into reality”.

22. The ANZSCO dictionary outlines that graphic designers plan, design, develop and prepare information for publication and reproduction using text, symbols, pictures, colours and layout to achieve commercial and communication needs with particular emphasis on tailoring the message for the intended audience.

23. The delegate expressed concern that the position associated with the nominated occupation was not genuine because the business is primarily focused on the retail sale of uniforms. The delegate felt that there would be limited design requirements and freedom.

24. On 9 February 2024, the applicant supplied a statement from company director, Dianne Flesfadar, in respect to the nature of the position, the nominee’s work logbook for the period January 2022 to December 2023 and example artworks produced for: keepsake uniforms for the graduating classes of Anula Primary School, Jabiru Area School, Ross Park Primary and St John’s College; sports uniforms for the Carpentaria Crocs Rugby Team, Waratah Football Club, indigenous round jumper for the PINT Football Club; and custom corporate uniforms for Team Health, NT Youth Justice Centres and JC Plumbing.

25. The statement outlined that the duties of the position relate to the application of designs onto garments using digitally printed graphics and designs. This involves understanding the design brief from the client, designing patterns, utilising print technology to produce the design and preparing it for the pressing of the design onto the fabric. Designs must be matched to the garment style and size. Ms Flesfadar estimated that the production of custom uniforms accounts for approximately 50 per cent of the company’s revenue.

26. The Tribunal is satisfied that a business of the size and nature of CFS Gear would require a full-time employee to perform the tasks of a graphic designer. Having reviewed the company financials and Business Activity Statements for 2022 and 2023, the Tribunal is satisfied that the business can financially support a full-time graphic designer.

27. For these reasons the requirements of reg 2.72(10) are met.

    Employment under contract

28. 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 LIN 19/212. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.

29. Graphic designer is not an occupation specified in the instrument. The nominee will be engaged as an employee under a written contract. The applicant supplied a contract of employment to the Department, signed on 26 August 2021. For these reasons the requirements of reg 2.72(11) are met.

    Annual earnings

30. 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 ($250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMM 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified in IMMI 18/033 ($53,900), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);

    ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

    ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

31. Payslips issued to the applicant for the period 22 January to 2 February 2024 report that the current annual salary for the position is $62,000. As the annual earnings in relation to the occupation will not be at least the specified amount of $250,000, the requirements of reg 2.72(15) must be met.

32. Immigration Instrument 18/033 sets out the method for determining the market salary rate. It stipulates that where there is a fair work instrument applicable to a nominated occupation, the annual market salary rate is the annual earning of an equivalent Australian worker specified in those instruments. The Graphic Arts, Printing and Publishing Award 2020 applies to graphic arts, printing, publishing and associated industries and occupations. It sets the minimum weekly rate for a Level 8 employee as $28.57 per hour ($56,454 per annum). An employee at this level may have completed a trade certificate, AQF Certificate Level IV or equivalent training. It is the highest classification under the award.

33. The nominee’s annual earnings will not be less than the TSMIT or the annual market salary rate. There is no information before the Tribunal to indicate that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation.

34. For these reasons the requirements of reg 2.72(15)(c), (d), (e), (f) and (g) are met.

    Employment conditions

35. 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.

36. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies.

37. There is no information before the Tribunal to indicate that the employment conditions that will apply to the nominee are less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location. There is no evidence before the Tribunal to indicate that the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(a) and (b) are met.

    Labour Market Testing

38. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).

39. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036. In addition:

    ·the nomination must be accompanied by the evidence specified in the instrument made under s 140GBA(6A) relating to labour market testing;

    ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5);

    ·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.

40. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.

41. In the current matter, labour market testing would not be inconsistent with an international trade obligation or subject to a major disaster exemption.

42. The applicant advertised the position from July to August 2021 on the Job Active, Jora and Indeed websites. Having reviewed the advertisements and applications, the Tribunal is satisfied that labour market testing was undertaken in the correct manner during the specified period.

43. For these reasons, the labour market testing requirements in s 140GBA are met.

    Nomination training contribution charge

44. 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).

45. Payment for the nomination training charge is accepted by the Department at the time of lodgement. The requirement of s 140GB(2)(aa) is met.

46. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

    DECISION

47. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Sheridan Aster
    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)…