Force 3 Pty Ltd (Migration)

Force 3 Pty Ltd (Migration) [2023] AATA 3694 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Force 3 Pty Ltd
REPRESENTATIVE:  Mr Francis Alberto (MARN: 1387488)
CASE NUMBER:  1934121
HOME AFFAIRS REFERENCE(S):          BCC2019/4523262
MEMBER:P. Maishman
DATE:13 October 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 October 2023 at 3:33pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Telecommunications Technician – no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation – position associated with the nominated occupation is genuine – no adverse information – decision under review set aside
LEGISLATION
Migration Act 1958, s 36
Migration Regulations 1994, rr 2.72, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 November 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 10 September 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(n) of the Regulations because the delegate was not satisfied the applicant had the financial capacity to pay the person identified in the application at least the annual market salary for the position for at least two years.
The applicant’s owner and managing director, Mr Shabbir Mithaiwalla, appeared before the Tribunal on 11 October 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
The Tribunal is satisfied the application was made using the approved (internet) form and was accompanied by the required fee. The position of Telecommunications Technician (ANZSCO 342414) is identified in the applicant’s business on the application and by reference to its organisation chart along with the related person, the nominee and applicant for a Subclass 186 visa in the Temporary Residence Transition Stream. The application includes the applicant’s annual turnover and the appropriate certification under s 245AR(1).
Departmental records indicate the applicant paid the nomination training contribution charge.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
Mr Mithaiwalla told the Tribunal the applicant was not subject to monitoring and there was no adverse information to disclose.
The is no indication that there is adverse information known to Immigration about the nominator or an associated person.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Telecommunications Technician (ANZSCO 342414) and the date of application is 10 September 2019.
There is no indication the position has a mandatory licence or registration requirement in Western Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
Mr Mithaiwalla told the Tribunal the applicant has had no issues with compliance with Commonwealth or Western Australian employment laws.
The is no indication that the applicant has anything other than a satisfactory record of compliance with the laws of the Commonwealth or Western Australia relating to employment.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
Based on information in the Department’s file the Tribunal is satisfied that all required payments have been made by the applicant and there are no outstanding debts owed by the applicant to the Department.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a Subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.
The applicant gave the Tribunal a copy of the visa grant notice confirming the identified person, Rodolfo Magno, was granted a Subclass 457 visa from 16 February 2017 and expired on 16 February 2021. The application for approval was made on 10 September 2019.
The Tribunal is satisfied the identified person, Annalyn Tinonas (the nominee), was the holder of a Subclass 457 visa at the time the application for approval of the nominated position was made.
The nominee falls into the category of “specified person” because, on 18 April 2017, she was an applicant for a subclass 457 visa that was subsequently granted (see paragraph 6 of IMMI18/052).
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Telecommunications Technician (ANZSCO 342414).
Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).
Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is LIN 19/049..
Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
The Tribunal is satisfied the nominated occupation of Telecommunications Technician is listed in ANZSCO and has the same 4 digit ANZSCO occupation group code as the nominated occupation in relation to which Rodolfo Magno most recently held his Subclass 457 visa, as evidenced by his visa approval letter dated 16 February 2017.
The Tribunal is satisfied the nominee is a specified person and was the holder of a Subclass 457 visa on 18 April 2017 and is exempt from holding an occupation listed in LIN 19/049.
There is no evidence before the Tribunal which would lead it to find that the identified person is not genuinely performing the tasks of a Telecommunications Technician and it is not aware of any information known to Immigration that indicates that the nominee is not genuinely performing tasks of the occupation as specified in ANZSCO.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:
·a Subclass 457 visa in the Standard Business Sponsorship stream, or
·a Subclass 482 visa in the Medium-term stream, or
·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.
Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.
In this case, the nomination application was made on 10 September 2019. The relevant instrument made under reg 5.19(6) is IMMI 18/052. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument.
Mr Mithaiwalla told the Tribunal the nominee has been employed full time as a Telecommunications Technician and worked solidly since July 2017. He has taken no time off without pay.
The Tribunal therefore finds that the employment of the nominee was in the position in relation to which the 457 visa was granted, on a full-time basis, with the employment being undertaken in Australia.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
Based on the material provided to the Tribunal, including financial statements, BAS returns, ASIC Company details, and a letter dated 12 September 2022 from Cross Corp setting out the applicant’s strategic focus the Tribunal is satisfied the applicant is actively and lawfully operating its business in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035): reg 5.19(7).
The Tribunal is satisfied that the nominated occupation of Telecommunications Technician is not specified in the relevant instrument and is not an exempt occupation.
Mr Mithaiwalla explained to the Tribunal the applicant business is involved in wholesale repair and shopfront and online retail of predominately mobile telephones. There is no Australian-based training, qualification or certification for technicians capable of repairing mobile phones. If the job is not done properly it can cost his business up to $2000 to replace a ruined telephone. The business has continued to operate throughout the Covid lockdowns. It did not receive government subsidies such as Wage-keeper and was able to maintain salary for its nominees, despite its profitability suffering. The Tribunal observed the applicants BAS statements indicate the applicant is in arrears with those payments. Mr Mithaiwalla explained that during the Covid pandemic, the taxation office allowed BAS payments to accrue to provide some support for small business. The applicant currently meets its ongoing accruals on time, and makes regular payment towards the outstanding amounts as agreed with the ATO. Mr Mithaiwalla says the ATO have made no demands for the outstanding amounts to be paid and the applicant is regularly repaying the deficit in accordance with its agreement with the ATO. His staff have been very loyal to the business and he is determined to continue to support them. The nominee has been employed by the business
The Tribunal is satisfied on the information before it that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035): reg 5.19(7).
Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or 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 applicant has nominated the occupation of Telecommunications Technician (ANZSCO 342414). The occupation is not specified in IMMI 18/035 and is not exempt from reg 5.19(5)(l). The applicant provided copies of the nominee’s employment contract which outlines her salary to be $54,000 per annum, plus superannuation. Annual PAYG statements since 2018 confirm the nominee has been paid at least the contracted amount and been continuously employed for more than two years.
Based on this information, the Tribunal is satisfied that the nominee will be employed for at least two years and that the terms and conditions of her employment will not exclude the possibility of extending the period of employment.
The Tribunal has considered the financial capacity of the applicant to continue to pay the nominee at least the AMSR for the next two years. The applicant’s current income tax returns and financial statements support Mr Mithaiwalla’s oral evidence that the applicant survived the most oppressive trading conditions it is likely to see through the Covid shutdowns which reduced its retail traffic and is returning to profitability.

The Tribunal has considered the information before it, including the applicant’s most recent (2021/22) financial statements and acknowledges the applicant operates in an industry sector heavily impacted by COVID-19. Evidence before the Tribunal supports that the applicant as of 30 June 2022 recorded modest income with proportionate profit. The submitted BAS returns and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.
The Tribunal has also taken into consideration evidence before it, to support that the nominee has been continuously employed by the applicant in the nominated position since March 2018. The nominee’s bank account statements and PAYG/Income statements support that the nominee has been paid in accordance with her entitlements.
The Tribunal has afforded consideration to the financial evidence before it and is satisfied on balance, the Applicant has the capacity to employ the nominee for at least 2 years and to pay the nominee at least the annual market salary rate for the occupation each year.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’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): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’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: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings for 2022/23 financial year was $60,499 plus superannuation. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The Tribunal notes that whilst the applicant stated in its application form that the AMSR was calculated by individual arrangement based on the market rate applicable to the Australian employee doing the same work in the nominated position. The applicant provided a copy of the employment contract for Perfecto Sabas, an Australian permanent resident showing he received the same terms and conditions as offered to the nominee.
Mr Mithaiwalla told the Tribunal the salary now exceeds $60,000 per annum and each of his technicians receives the same salary whether they are Australian residents/citizens or not.
Payscale shows the average salary is $65,000 ranging from $46,000 to $88,000 per annum.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.
This amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b). Relevant to this matter at the time this application was lodged on 29 June 2019, IMMI 18/033 specified this as $53,900. The Tribunal is satisfied that the annual market salary rate exceeds the relevant TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.
The nominee’s Contract of Employment show that the nominee’s annual earnings are $54,000 per annum exclusive of superannuation. The nominee’s taxation records a show that the nominee’s annual earnings in the 2022/23 financial year were $60,500 plus superannuation.
Accordingly, the Tribunal finds that the nominee’s annual salary rate will not be less than the annual market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as evidenced in the nominee’s taxation records, exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
For these reasons, the requirements of r.2.72(15) are satisfied.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The employment contract dated 2017 sets out the terms and conditions of the nominee’s employment which is consistent with the terms and conditions contained in the employment contract of Perfecto Sabas, an Australian permanent resident. The nominee’s PAYG statement supports that her salary has increased and in 2023 his salary is $60,500.
The Tribunal is satisfied on the totality of the evidence before it that there is no evidence before the Tribunal to indicate that there is information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
Given the above findings, the Tribunal is satisfied that the applicant satisfies reg 5.19(5)(q).
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
P. Maishman
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)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 identified person 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;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2023] AATA 3694

13 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction