FOREVER LAWNCARE PTY LTD (Migration)

FOREVER LAWNCARE PTY LTD (Migration) [2021] AATA 4869 (7 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Forever Lawncare Pty Ltd
CASE NUMBER:  1826536
HOME AFFAIRS REFERENCE(S):          BCC2018/3013810
MEMBER:Namoi Dougall
DATE:7 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 07 December 2021 at 9:45am

CATCHWORDS
MIGRATION – approval of a nomination – occupation of Gardener (General) – genuine need for the employment – nominee’s visa history – terms and conditions of employment no less favourable – duties of the position – labour market testing – facilitating a stay in Australia – decision under review set aside
LEGISLATION
Migration (Skilling Australians Fund) Charges Act 2018
Migration Act 1958, s 140
Migration Regulations 1994, rr 1.13, 2.57, 2.73, 5.19, 5.42
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and r.2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 10 August 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and r2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of 3 alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) because the delegate was not satisfied that the position associated with the nominated occupation of Gardener was genuine. Of particular concern to the delegate was that the nominee was the brother of a director of the applicant and that the nominee’s visa history indicated that he tried several pathways to remain in Australia.
Ms Ravneet Vinaik, a director of the applicant, appeared before the Tribunal on 2 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Krishan Lal.
The applicant was represented in relation to the review by its registered migration agent.
BACKGROUND
The business nomination application indicated that the nominee’s salary would be $54,000 for 38 hours work and the location at which the occupation would be performed was West Ryde in Sydney, New South Wales. At the hearing Ms Vinaik stated that she took over the business in January 2017 from Mr Kaur, who she believes was the only director, and she is now the only director. At the hearing Ms Vinaik stated there are 3 employees including herself.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
10.The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant, Mr Krishan Lal as the person who will work in the occupation as required by r.2.73(1) and (8). The nomination was made using the approved form and the fee has been paid as required by r.2.73 (3),(4) and (5). The nomination includes the location of West Ryde in Sydney, NSW, at which the occupation will be carried out and includes the name, 6‑digit ANZSCO code of the occupation of Gardener (ANZSCO 362211), the proposed period of stay of 2 years and the annual turnover for the nomination of AUD303,736 as required by r.2.73(9). The nomination does not apply in the Labour Agreement stream and the occupation is for a Short-term skilled occupation in the Short-term stream as required by r.2.73(6).
11.The nomination incudes written certification that:
·the employment contract with the nominee complies with or will comply with Commonwealth and State or Territory Laws unless the occupation is exempt as requited by r.2.73(13).
·The tasks of the position include a significant majority of the tasks specified in ANZSCO or the relevant instrument if there is no ANZSCO code; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO or the relevant instrument if there is no ANZSCO code; and, unless the occupation is exempt, the person is in the person’s business, if they are or would be an overseas business sponsor, or, the position is in the person’s buisness or an associated entity’s business, as required by r.2.73(14).
12.Liability to pay the charge arises for nominations made on or after 12 August 2018. The business nomination application was lodged on 10 August 2018, therefore, the requirements of s r.2.73(5A) are inapplicable.
For these reasons, the Tribunal is satisfied the requirements in 2.73(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
Having regard to the facts, matters and circumstances available to the Tribunal, the Tribunal is satisfied that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons, the requirements in reg 2.72 (4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The Tribunal finds that the applicant is a standard business sponsor pursuant to a valid sponsorship agreement for the period from 14 May 2018 to 14 May 2023, and that the application is for the Short-term or Medium-term stream for the nominee.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
The Tribunal has no evidence before it that the person has any outstanding debt under s 140ZO.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The nomination has nominated the nominee in the application for the occupation of Gardener (General) (ANZSCO 362211).
The Tribunal has reviewed the application and finds that the nominated occupation is for a Subclass 482 (temporary skill shortage) visa in the short term stream or medium-term stream. The Tribunal is satisfied that the occupation of Gardener applies to the nominee as required by the relevant legislative instrument. Further, there are no inapplicability conditions set out in the relevant instrument for the nominated occupation of Gardener (General)(ANZSCO 362211). For these reasons 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.
Provided to the Department and the Tribunal was a signed offer of employment dated 1 August 2016 signed by Mr Ranjeet Kaur, the previous director of the applicant, and the nominee (the offer of employment) and an addendum to the employment contract dated 7 August 2018 and signed by Ms Vinaik, the current director of the applicant (the addendum). The addendum states, amongst other things, that the nominee’s full time employment commenced upon the approval of the nominee’s Subclass 457 visa on 22 March 2017 and that he was now being offered a permanent full time position and sponsorship for a Subclass 482 visa.
The offer of employment indicates that the position is full time and the nominee’s annual remuneration will be $54,000 plus the superannuation guarantee for a 38-hour week. The offer of employment set out the nominee’s specific duties as follows:
·     Discussing with clients about different varieties of Grass available and the benefits and care needs of each;
·     Preparing soil bed for laying Turf, planting Flowers, Hedges, Trees and Shrubs;
·     Maintaining planted and grassed areas by weeding, trimming, fertilising, watering and mowing as per the agreed service schedule for each client;
·     Pruning trees and hedges, and installing plant support and protection devices;
·     Preparing and maintaining seedbeds and growing sites;
·     Spraying and dusting plants and trees to control insects and disease;
·     Operation of mowers, brush cutters, edgers and hedgers.
·     Book client appointments on Phone if Director is un-available and calls are diverted to your phone and collect payments if clients paying my cash;
·     Maintain high standards of customer service. Stand by the business motto of “Service with a Smile”.
Also provided to the Department and the Tribunal was a Position Description for Gardener dated 20 September 2018, which indicated that the duties and responsibilities of the position will be as follows:
The main delivery outcome and focus for this role will be greenery cultivation, garden maintenance and care for existing gardens and green strips/ park areas for our clients.
As part of your work scope you will require to apply your technical skills as a qualified a gardener to ensure the health and well-being for the plants and grassed areas under contract. This will include identifying and treating plant diseases and pests as soon as possible and also to take precautionary measures to prevent such infection or infestation.
As a skilled gardener, you will be required to apply the necessary chemicals and fertilisers at the right time/ for the rights even/ in the correct manner without supervision. You will be responsible for these tasks to be carried out at a high level of professional care.
Your specific duties will include:
·Discussing with clients about different varieties of Grass available and the benefits and care needs of each;
·Preparing soil bed for laying Turf, planting Flowers, Hedges, Trees and Shrubs;
·Maintaining planted and grassed areas by weeding, trimming, fertilising, watering and mowing as per the agreed service schedule for each client;
·Pruning trees and hedges, and installing plant support and protection devices;
·Preparing and maintaining seedbeds and growing sites;
·Spraying and dusting plants and trees to control insects and disease;
·Operation of mowers, brush cutters, edgers and hedgers.
The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Gardener (General) (ANZSCO 362211) and the tasks for the unit group 3622 Gardeners, which states:
Tasks Include:
·     preparing and maintaining seedbeds and growing sites
·     propagating and planting trees, bushes, hedges, flowers and bulbs
·     preparing lawn areas by spreading top soil and planting grass, and by laying instant turf
·     maintaining planted and grassed areas by weeding, trimming, fertilising, watering and mowing
·     pruning trees and hedges, and installing plant support and protection devices
·     preparing plans and drawings, selecting materials and plants, and scheduling landscape construction
·     setting out and installing hardscape and softscape structures
·     constructing gravel and paved areas, walls, fences, pergolas, ponds, barbecues and garden furniture
·     examining trees to assess their condition and determine treatment
·     lopping limbs off trees and shaping branches using chain and handsaws
·     spraying and dusting plants and trees to control insects and disease, and felling diseased trees
ANZSCO stated in relation to Gardener (General) that the position: “[p]lants, cultivates and maintains parks and gardens”.
At the hearing Ms Vinaik stated that the nominee had already been working for the business when she purchased it. She comes from an agricultural background and wanted to have a farming related business, but she cannot afford land close to Sydney so when the nominee mentioned the business he was employed at, she thought she could grow this business. Further, she wanted someone in the business she could trust. At the hearing Ms Vinaik stated that, when she purchased the business, she signed an amended contract but the position and terms and conditions remained the same, as the nominee was employed as a Gardener. Currently, the nominee is paid $56,000 per annum plus the superannuation guarantee.
At the hearing Ms Vinaik stated that when she obtains a new customer who wants their grass or garden maintained, she discusses with the customer, and then the nominee, the requirements of the customer. The nominee would then discuss with the customer what the best grass type for their area would be; he also plants trees, hedges, flowers and herbs. If a new lawn is needed, he spreads the top soil and lays the turf; he maintains grass areas by: removing weeds; fertilising; spraying for weeds; watering; and mowing the lawn. Sometimes when it is raining, he does paperwork such as printing and writing out what work he does for each client, which she compares to finding out which customers are satisfied so they can provide better quality care. Ms Vinaik confirmed that he primarily works with grass and turf, for about 80% of his time. The planting of flowers and trees takes up the remaining 20% of his time. If it is a new house, he does landscaping, including landscaping the garden and spreading top soil so he can plant new grass. Ms Vinaik confirmed that the nominee sets up garden beds. Ms Vinaik confirms that the nominee builds up garden beds, in fills them with soil and adds plantings. She also stated that she and the other employee (Mr Sani) help with this as it is a big job and customers need the work done within a timeframe.
At the hearing the Tribunal asked Ms Vinaik what she does in the business and Ms Vinaik stated she takes the calls from the customer and discusses what is required. She then goes to the site to further discuss what is needed by the customer. After she has visited the site, Ms Vinaik speaks with the nominee and he then does what is in his scope of practice and remaining work goes to the other employee. Ms Vinaik stated that she works part time in the business as she has another business, and confirmed that she primarily deals with customers and the paperwork. She does work on the site when the nominee needs extra help. When on site she checks with the customer that they are happy with the work that is being done.
At the hearing the Tribunal asked what Mr Sani’s tasks are and Ms Vinaik said that whatever the nominee cannot do under his scope of practice, he hands over to Mr Sani. There are regular clients for whom Mr Sani mows and waters the grass, and when he is onsite, if digging is required to plant a flower, he is there to help the nominee. He also weeds the garden and sometimes he also helps with the paperwork.
At the hearing Ms Vinaik confirmed that when the business employed subcontractors the work was the same as that done by the nominee, however, she cannot remember how much they were paid.
At the hearing the nominee stated that his daily specific duties was to speak with the customer about the different types of grass and the benefits of each of those types of grass. The nominee stated that he is a skilled gardener and he goes to the site after Ms Vinaik has spoken to the customer and been to the site. He explains everything about the variety of grass, speaks to the customer about what their budget is and which grass fits within the budget. He explains each variety of grass and plants that are suitable for the soil in the garden bed depending on whether the soil is clay or sandy, and plants according to the soil. They regularly maintain some houses either weekly or monthly, which involves maintaining hedges, flower beds and the grass, including mowing. He also blows leaves, fertilises the grass and does weeding by hand for small amounts of weeds, and spraying if there is a large area of weeds. He lays turf, especially in winter as the business is less busy, by restoring the area, laying a bed for the turf and then putting down the turf. He also makes garden beds using timber, puts in plants using garden mix and then adds mulch on top. Sometimes he uses weed mats. He also maintains some gardens on a 3 or 6 months basis with watering and mowing. Roughly 70% to 80% of his work is maintaining grass and putting down turf while the remaining 25% to 30% is planting garden beds. Mainly he works in turf, especially in winter, and he does some soft landscaping. The nominee confirmed that he does insect control, which involves sprays; the type used depends on whether he is spraying flowers or weeding. He plants trees and hedges, and if it is a new house, he may plant a tree less than 4 metres in height. New houses require a lot of hedging. He also fertilises the grass 3 times a year and he does fertilise some plants such as camelias and gardenias. Currently he is paid $56,000 per annum plus superannuation.
On the above evidence, the Tribunal is satisfied that the nominee currently performs nearly all of the task listed in ANZSCO; therefore, on all the evidence the Tribunal is satisfied that the position associated with the nominated occupation is genuine.
On the evidence the Tribunal is also satisfied that the position is full time.
For the above reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (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.

As referred to above, the Department and the Tribunal were provided with the offer of employment dated 1 August 2014 and the addendum dated 7 August 2018. For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where 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: 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).
The Tribunal finds, on the information on the file and given at the hearing, that the nominee’s annual earnings are $56,000 per annum. The amount specified in the relevant instrument for the purposes of reg 2.72(15)(b) is $250,000. 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.
Provided to the Tribunal was a copy of the Gardening and Landscaping Award 2010 MA000101, however, the Tribunal consulted the up to date version of the Award, the Gardening and Landscaping Award 2020. The Tribunal accepts that the relevant level is Level 5, and, therefore, the relevant hourly rate is $24.41, which is a weekly rate of $927.70, and equates to an annual salary of $48,240.40.
Provided to the Tribunal was a salary guide from Payscale, an industry guide which carries out remuneration surveys generated across the relevant industry. The salary range for a Gardener is $43,000 to $66,000, with the median salary being $52,983.
On the above, the Tribunal is satisfied that the proposed salary package for the nominee of $55,162 plus superannuation guarantee attached to the nominated position is in excess of the TSMIT. Further, the Tribunal is satisfied that annual earnings are equivalent to 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 as the annual earnings are within the range of salaries for the occupation and exceed the relevant Award rate, and are determined in accordance with the relevant instrument. Further, The Tribunal has considered the entirety of the Departmental file provided to the Tribunal and there is no information on the file to indicate that there is any information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation.
On the evidence on the file, being pay slips from 10 May 2021 to 28 October 2021 for Mr Sani, the annual earnings of the Australian citizen performing equivalent work at the same location is $52,000 per annum plus the superannuation guarantee.
On the above, the Tribunal is satisfied that the requirements of reg 2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The Tribunal has considered the information and evidence provided to the Department and Tribunal, including the offer of employment dated 1 August 2014 and the addendum dated 7 August 2018. There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.
Further, there is no information before the Tribunal which indicates that the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(b) are met.
Labour market testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/059, which is the 12 months immediately before the nomination application form is lodged. In addition:
·the nomination must be accompanied by the evidence specified in s 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous 4 months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
It is not inconsistent with any international trade obligation to require the applicant to satisfy labour market testing as specified in the relevant legislative instrument: IMMI 17/109.
The applicant is not exempt from satisfying the labour market testing condition by s 140GBB – Major Disaster Exemption, as the Minister has made no such exemption in this case. Further, the nominated occupation is not specified in the relevant instrument IMMI 13/137, therefore, the applicant is not exempt from satisfying the labour market testing condition: s 140GBC.
Provided to the Department was a summary of domestic recruitment signed on 14 July 2018, which indicated that the position was advertised on Jobactive and Indeed from 13 June 2018 to 12 July 2018. A list of the applicants was also provided for both advertisements. There were 14 responses to the advertisement on Jobactive, however, they were listed as not being suitable as they did not have the experience required, lived outside of Sydney or had unrealistic expectations as to salary. There were 3 responses to the advertisement on Indeed; they were listed as not being suitable as they did not have the experience required, and one wanted contract work.
The evidence before the Tribunal (and provided to the Department at the time of application) indicates that the applicant undertook advertising on 2 job websites for the nominated position from 13 June 2018. The Tribunal is, therefore, satisfied that the applicant has undertaken labour market testing within the specified period. The Tribunal is, therefore, satisfied that the applicant has been unable to successfully recruit from within the Australian labour market for the nomination position.
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The business nomination application was lodged on 10 August 2018. For these reasons the requirements of s 140GB(2)(aa) are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
Application purpose- Facilitating a stay?
68.The Tribunal has had the benefit of seeing and hearing from both the applicant’s director and the nominee in person. The Tribunal is satisfied that the application is genuinely made to support the business of the applicant and that the nominee is a suitable candidate who has been performing the role for some time.
69.The Tribunal finds that considering the evidence and submissions made at hearing, and considered with the information now available, that the application was not created for the purpose of facilitating the nominee’s stay in Australia, and for the reasons set out above, finds the position to be genuine and the requirements for the application have been met
70.For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Namoi Dougall
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)…

[2021] AATA 4869

7 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal