Forlano Investments Pty Ltd (Migration)

Forlano Investments Pty Ltd (Migration) [2022] AATA 1215 (15 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Forlano Investments Pty Ltd
REPRESENTATIVE:  Mr Joseph Italiano
CASE NUMBER:  1908389
HOME AFFAIRS REFERENCE(S):          BCC2019/1193967
MEMBER:Stephen Witts
DATE:15 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 15 February 2022 at 12:49pm
CATCHWORDS
MIGRATION – nomination – medium term stream – Chef– nominee was no longer employed by the nominator – no contract of employment material was provided – applicant had undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 – not satisfied that the position associated with the nominated occupation is genuine – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73, 5.19
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 9 March 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the medium term stream for the position of chef ANZSCO code 351311.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s140GB because the applicant did not comply with the relevant legislative instrument LIN18/036: Period, manner and evidence of labour market testing.
The applicant, Forlano Investments Pty Ltd, appeared before the Tribunal on 15 February 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Mr Antonio Ottati.
For the following reasons, the Tribunal has decided to affirm the decision under review.
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 Tribunal has considered all the material before it including evidence given prior to the hearing and evidence given at hearing.
In particular the Tribunal notes a submission from the applicant’s previous representative dated 16 April 2019 stating that the sponsor lodged a nomination to sponsor an Italian chef, Mr Antonio Ottati, on a 482 visa and that it was refused on the basis that the delegate stated that the nominator did not demonstrate that appropriate labour market testing had been undertaken. It was further stated that evidence was provided regarding a ‘Seek’ advertisement indicating that the position was full-time but that “by a genuine mistake” the nominator also forwarded an ‘Indeed’ advertisement dated October 2017 instead of providing the latest screenshot of the advertisement. It was further stated that the two invoices for the two sites demonstrates that an advertisement was placed on two different websites in the required timeframe.
The Tribunal notes that a letter was provided by a client specialist with ‘Indeed’ stating that an advertisement for a chef for a business called ‘38 Chairs’ was advertised on the website from 25 May 2018 until 17 January 2019. It is noted that the salary for the position was full-time and denoted a salary of $55,000 to $69,000.
It was also noted by the Tribunal that other materials were provided including a letter from ‘Seek’ and a job description for the role of chef noting that the position advertised was full-time and offered a salary of $55,000 to $69,000 and that it was advertised from 30 November 18 until 30 December 18.
At the hearing the Tribunal had a detailed discussion with the parties regarding the application.
The nominator stated that he made a genuine mistake in not providing the most up-to-date information to the Department at the time but that he has subsequently provided the information necessary to ensure that he adheres to the regulations regarding labour market testing.
The nominator stated that he owns restaurants in Melbourne and that the nominee, his nephew, worked for him from 2017 until April 2021 but due to the COVID pandemic he was unable to continue the nominee’s employment.
The nominee stated that he is currently working on the Gold Coast in Queensland as a restaurant manager as he has been able to find full-time work of a temporary nature in Queensland because of the more relaxed pandemic lockdown regulations in that state. He stated that he is in a 3 ½ year relationship with an Australian citizen and that he is considering a partner visa application. He stated that he first arrived in Australia on a tourist and then a working holiday visa and that he subsequently held 2 student visas. He stated that he qualified as a specialty Italian chef back in his home country of Italy and that he studied for and acquired a Diploma of Hospitality Management here in Australia.
The Tribunal has considered this evidence carefully noting that it is satisfied that evidence has been provided of a credible nature that the nominator did mistakenly provide incorrect information regarding evidence of his labour market testing but that subsequently he has been able to demonstrate that he has conformed to the requirements of the appropriate legislative instrument and that he did advertise for periods of more than four weeks on a recognised job portal for the position of chef in accordance with ANZSCO code 351311 and that the Tribunal is also satisfied that the nominee provided evidence that he has worked in the business carrying out the duties of a qualified chef.
However, the Tribunal also notes that in evidence provided the nominator stated that he did not need the nominee anymore in the business, that he has changed the strategy of the business, that he could not necessarily support the nominee in future employment, and did not have a place for him.
The Tribunal has considered the above and notes that therefore it must make a finding that on that basis the nominator cannot employ the nominee in the business as a chef carrying out the duties and responsibilities of a chef in accordance with ANZSCO code 351311 for at least a two-year period.
However, the Tribunal has also considered that the nominator has been impacted severely by circumstances beyond his control, that is the COVID pandemic, and that the nominee has therefore had to travel to Queensland to find appropriate professional employment in a geographic area less prone to government lockdown mandates. The Tribunal also notes that the nominee has been working for some months on a full-time basis with his current employer in Queensland and that consideration under these circumstances should be given to assist the nominee to make an application via his current employer who could nominate or sponsor him for a business visa. The Tribunal also notes that as above the nominee has been in a relationship with an Australian citizen for a period of 3 ½ years and that they are trying for a family and also considering a formal partner visa application. The Tribunal has considered the above and finds that a Special Ministerial Reference should be considered under these circumstances to allow the nominee, and possibly to assist the nominee, in making an appropriate application to continue his residence in Australia.
The Tribunal further notes that the nominee’s partner, the Australian citizen Ms Kimberly Archer, recently lost her brother to cancer, and is now caring for her mother who is living in Queensland with the nominee and herself, and that therefore special consideration should be given on that basis to assist the nominee to retain residence in Australia and that that would be in the interest of Australian citizens.
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.
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 as the person who will work in the occupation. The nomination was made using the approved form and the fee and has been paid. The applicant has identified Mr Antonio Ottati in the nomination. The nomination includes the location of the business, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Chef (ANZSCO 351311).
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.
For these reasons the requirements of 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 notes that the applicant provided the Tribunal with evidence of their Standard Business Sponsor approval notification.
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 is satisfied that there is no evidence that the applicant 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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
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.
For these reasons the requirements of reg 2.72(6) are met.
The Tribunal notes that the requirements for English language proficiency have also been met.
For these reasons the requirements of reg 2.72(14) are met.
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 18/051 Specified Occupations.
The Tribunal is satisfied that IMMI 18/051, in force at the time of application, included the occupation of Chef – ANZSCO Code: 351311.
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.
The applicant provided evidence that the nominee was no longer employed by the nominator and has not been employed by him since April 2021. As above it was also stated that a job could not be provided in the future and that therefore a role does not exist for the next 2 years.
For these reasons the requirements of reg 2.72(10) are not 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 18/051. 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 reg 2.72(11) must be met.
The Tribunal notes as above that no contract of employment material was provided.
For these reasons the requirements of reg.2.72(11) are not 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 notes that evidence has not been provided regarding the nominee’s annual earnings during his employment with the nominator between his employment from 2017 until April 2021.
For these reasons the requirements of reg 2.72(15)(b)(c)(d)(f) and (g) are not 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 not apply.
The Tribunal notes that no evidence has been provided regarding this matter.
For these reasons the requirements of reg 2.72(18)(a) are not 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 ss 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 18/036.In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The 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 that include the following requirements:
“8        The advertisement of a nominated position
(1)    This section is made under subsection 140GBA(5) of the Act.
Language
(2)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.
Method
(3)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:
(a)    on a recruitment website with national reach in Australia; or
(b)   in print media with national reach in Australia; or
(c)    on radio with national reach in Australia; or
(d)   if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.
(4)    The following details of the position must all be included in the advertisement:
(a)    the title or a description of the position;
(b)   the skills or experience required for the position;
(c)    the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;
(d)   the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.
Duration
(5)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a)   print media;
(b)   radio;
(c)   website.”

The Tribunal is satisfied that the applicant had undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 that applied at the time of the engagement of the nominee, which was supported by evidence provided to the Tribunal prior to hearing. In this regard, the position of Chef – ANZSCO Code: 351311 was advertised for 4 week periods in the Seek and Indeed sites, which the Tribunal accepts are nationally distributed print mediums that satisfies the expressed criteria.
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 (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).
The Tribunal notes that evidence was provided regarding this matter.
For these reasons the requirements of s 140GB(2)(aa) are met.
Concluding paragraph
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Stephen Witts
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2022] AATA 1215

15 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction