Gemacon Pty Ltd (Migration)

Gemacon Pty Ltd (Migration) [2023] AATA 549 (21 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gemacon Pty Ltd
REPRESENTATIVE:  Mrs Sonja Reusche (MARN: 1463010)
CASE NUMBER:  1917718
HOME AFFAIRS REFERENCE(S):          BCC2018/4672727
MEMBER:Terrence Baxter
DATE:21 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 February 2023 at 10:48am
TCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream – Vehicle Painter – it is reasonable to disregard the adverse information – genuine need to employ a paid employee –no less favourable terms and condition of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
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 14 June 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, Gemacon Pty Ltd, applied for approval on 24 October 2018. The applicant nominated Mr Matthew Kennett (the nominee) in the position of Vehicle Painter. The applicant operates a motor vehicle repair business under the business name Bissell’s Paint & Panel from premises situated at 33 Rene Street Noosaville, Queensland. The applicant has employed the nominee on a full-time basis for over six years.
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 nomination stream, a Direct Entry nomination 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 nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because the delegate found that there is adverse information known to Immigration about the applicant and that it was not reasonable to disregard the information.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 3 July 2019.
Mr Iain Kippen, the sole Director of the applicant, appeared before the Tribunal by video conference on 22 November 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from Gemma Surplice, the applicant’s Office Manager and from the nominee by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
The applicant was represented in relation to the review by its Registered Migration Agent, Ms Sonja Reusche of Immigration Consultants Group (Australia) from 24 August 2022. The representative attended the Tribunal hearing by video conference.
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.
Evidence presented prior to the hearing
The applicant produced to the Department of Home Affairs (the Department) the following documents:
a.Evidence regarding the employment as an apprentice of Mr Aden Troxell.
b.Employment agreements for the nominee dated 27 May 2016 and 17 October 2018 together with position descriptions.
c.Job advertisements for the position together with resumes of job applicants.
d.A submission from a former representative dated 24 October 2018.
e.An ASIC Company Statement for the applicant dated 8 April 2018.
f.Evidence from the Australian Business Register of the applicant’s GST registration dated 8 April 2011.
g.PAYG payment summaries of the nominee for the 2017 and 2018 financial years and a payroll activity summary for the period from 1 July 2018 to 23 October 2018.
h.An employment agreement and evidence of salary payable to another employee Mr Craig Tod.
i.Business activity statements for the period from July 2017 to June 2018.
j.A submission from the applicant dated 23 October 2018.
k.ABN Lookup forms in respect of the applicant’s ABN dated 19 September 2018.
l.Market salary evidence.
m.An organisational chart.
n.A submission from a former representative in response to a procedural fairness letter issued by the Department on 15 April 2019.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.Copies of various documents previously provided to the Department.
c.A current ASIC extract in respect of the applicant.
d.Evidence of registration of the business name Bissell’s Paint & Panel dated 29 March 2021.
e.Financial statements and taxation returns for the 2018 to 2021 financial years.
f.Business activity statements for the period from June 2020 to March 2022.
g.An updated organisational chart.
h.Profiles of the various roles of employees of the applicant’s business.
i.The nominee’s passport.
j.A submission from the applicant dated 10 January 2022 regarding an increase in the nominee’s hourly rate.
k.PAYG payment summaries and Income Statements of the nominee for the 2016 to 2022 financial years.
l.The nominee’s income tax assessments for the 2018 to 2022 financial years.
m.Notification of the applicant’s approval as a standard business sponsor dated 15 June 2016.
n.Market salary evidence.
o.Promotional material regarding the applicant’s business.
p.Evidence regarding satisfaction of training requirements.
q.Submissions from the applicant dated 23 August 2022 and 24 August 2022.
r.Submissions from the representative dated 15 August 2022 and 12 November 2022.
Evidence presented prior to and at the hearing regarding the applicant’s operations
The applicant is a family-owned private company repairing motor vehicles for private customers and insurance companies. Mr Kippen and his wife are the joint holders of the whole of the issued shares in the company and he is the sole Director of the company. His son and daughter are both employed in the company business.
The applicant was registered in 2011 and has operated successfully since that time. The company’s turnover has increased by over 50% from the 2016 to the 2021 financial years. The applicant has employed the nominee in his position of Vehicle Painter since October 2016.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A submission from the applicant dated 2 December 2022.
b.Evidence regarding refund of underpaid wages to two employees in March 2018.
c.Further market salary evidence.
d.A submission from the representative dated 13 February 2023.
e.A submission from the applicant dated 13 February 2023.
f.A current Pay Guide under the Vehicle Repair, Services and Retail Award issued by the Fair Work Ombudsman.
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) (the 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.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.
Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The records of the Department confirm that the required nomination training contribution charge has been paid by the applicant.
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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory; or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law; or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)); or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances; or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member); or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them; or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or;
·one is or was able to exercise influence or control over the other; or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
The information before the Tribunal, which is known to Immigration, and which the Tribunal could consider to be adverse, is contained in a Notice of Decision of the Australian Border Force (the ABF) dated 11 April 2018, the Department’s letter to the applicant dated 15 April 2019 (the invitation to comment letter), a submission to the Department by a former representative of the applicant dated 13 May 2019, the delegate’s decision dated 14 June 2019 and the applicant’s submission dated 23 August 2022. These documents indicate that:
a.On 11 April 2018, the applicant was barred from being an approved sponsor under s 140M of the Act for six months.
b.The applicant was barred from being an approved sponsor due to breaches of the following sponsorship obligations:
·     reg 2.89 – failure to satisfy sponsorship obligation
·     reg 2.79 – obligation to ensure equivalent terms and conditions of employment
·     reg 2.83 – obligation to provide records and information to the Minister.
The failure to ensure equivalent terms and conditions of employment related to underpayment of wages and allowances to two employees between September 2015 and June 2016. The breach of the obligation to provide records and information to the Minister related to delays on the part of the applicant in providing information to the Department during the monitoring of the applicant. The failure to satisfy sponsorship obligations related to the breaches of reg 2.79 and reg 2.83.
The applicant was invited by the Department to comment on the unfavourable information on 15 April 2019. On 13 May 2019, the applicant’s former representative responded to the Department stating that:
a.After having been advised by the Department that monitoring of the applicant had commenced, the applicant became aware that an error had been made in the calculation of wages payable to two employees as a result of previously undetected problems in a payroll system which the applicant had inherited from a former proprietor of the business.
b.The salaries payable to the two employees under their employment agreements were more favourable than the salaries payable under the relevant award. However, the employment agreements did not specifically refer to tool and travel allowances and, as a result of using the payroll system which was being used at the time, underpayments had occurred.
c.The underpayments had been rectified immediately the applicant had become aware of the issue.
d.After having received appropriate advice, the applicant was now aware of its obligation to provide documentation to the Department in a timely manner.
The Tribunal finds that the applicant has been the subject of administrative action for a possible contravention of a law of the Commonwealth by a Department or regulatory body that administers or enforces the law. The Tribunal therefore finds that the information is adverse information as provided in reg 1.13A. It therefore follows that there is adverse information known to Immigration about the applicant and the applicant does not satisfy the requirement in reg 5.19(4)(b)(i) in respect of this information.
The Tribunal then needs to consider whether it is reasonable, under reg 5.19(4)(b)(ii), to disregard the adverse information. The Tribunal has considered the Department’s policy contained in its Procedures Advice Manual (PAM3) in relation to disregarding adverse information known about an applicant. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: ‘When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case’.
The policy states that factors that decision makers should take into account when deciding whether it is reasonable to disregard adverse information include the following:
·the nature and seriousness of the adverse information;
·whether the adverse information arose recently or a long time ago;
·whether the applicant has acknowledged the issues with their previous behaviour;
·whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repaying monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not recur;
·whether the applicant has demonstrated subsequent compliance.
The policy further states that circumstances in which it may be reasonable to disregard adverse information include the following:
·the applicant has been barred for a period of two years or more but has taken steps to negate the implications of relevant conduct or practices;
·the applicant has developed practices and procedures to ensure the relevant conduct is not repeated.
The policy also states that circumstances in which it is unlikely to be reasonable to disregard adverse information include the following:
·the applicant has been charged for serious and/or repeated breaches of the Australian law in the last five years;
·the applicant has been barred for a period of three years or more, or had their sponsorship cancelled by the ABF in the last five years;
·the applicant is being investigated for potentially serious breaches of immigration law;
·the applicant failed to pay, or failed to pay in full, an infringement notice that they were issued by the Department;
·the applicant has not acknowledged or declared their previous adverse conduct;
·the applicant has provided no evidence that they have corrected or made restitution for their previous adverse conduct and/or that they have taken steps to ensure that further issues do not arise.

The Tribunal has considered the circumstances in respect of which the administrative action against the applicant was taken. Monitoring of the applicant by the ABF commenced in September 2017. The ABF notified the applicant of the commencement of monitoring on 6 September 2017 and a response to that notice was due to be provided by the applicant by 20 September 2017. The applicant provided a response on 9 November 2017. On 7 December 2017, the ABF requested that records and information be provided by the applicant. The original due date for provision of those records and information was 14 December 2017, that date later being extended to 21 December 2017. The applicant provided its response on 28 December 2017.
The applicant provided to the ABF its calculations of the underpayments to the two employees. The applicant calculated that the underpayments amounted to $477.38 and $1,059.32 respectively. The ABF noted that the applicant had not provided evidence of payment of those amounts. In its Notice of Decision, the ABF speculated that the applicant’s calculations may have been inaccurate, but no specific detail was provided of any alternative calculation of the underpayments. The applicant has produced to the Tribunal evidence of payment of the respective amounts payable to the two employees on 8 March 2018, prior to the delivery of the Notice of Decision.
In its written submission of 23 August 2022, the applicant stated:
a.That it had not been subject to monitoring by the Department, the Australian Taxation Office (the ATO) or Fair Work Australia (FWA) since the Notice of Decision in April 2018.
b.That it provided fair and just work conditions and above award wages for its employees.
c.That, upon being notified of the potential underpayment of employees, it had consulted its accountant and contacted FWA and the ATO to ensure that correct wages were being paid.
The representative made a comprehensive written submission to the Tribunal that the adverse information should be disregarded.
At the hearing, Mr Kippen stated that any underpayment of employees was unintentional and that the base salaries payable to the employees were in excess of the relevant award amounts. He said that the errors were caused by the applicant’s misunderstanding of the calculation of allowances payable to the employees. He said that the underpayments were refunded promptly. He also said that, as a result of the monitoring, the applicant had changed its pay structure for employees and acquired a new payroll program so that the problem would not be repeated.
The delegate found in June 2019 that it was not reasonable to disregard the adverse information. Now, with the benefit of evidence which has been provided by the applicant and considering the passage of time since the underpayment of wages occurred, the Tribunal takes a different view.
Factors which could influence the Tribunal not to disregard the adverse information are:
a.The nature of the adverse information. The underpayment of workers is a serious matter and was obviously regarded seriously by the ABF in making its decision on 11 April 2018.
b.The cancellation of the applicant’s sponsorship. This decision reflects the serious nature of the breaches of the Regulations.
Factors which could influence the Tribunal to disregard the adverse information are:
a.The lapse of time since the breaches. The offending conduct in relation to the underpayment of wages occurred between September 2015 and June 2016. Over seven years have elapsed since the commencement of the period of underpayment.
b.The applicant’s subsequent compliance with the Regulations. The Tribunal has not been made aware of any subsequent breaches by the applicant of the Regulations. Mr Kippen stated at the hearing that the applicant has not been investigated for any such breaches.
c.The payment of the underpaid wages. The applicant has provided evidence that it promptly paid to the underpaid employees the relevant underpayments.
d.Steps taken by the applicant to ensure that the adverse conduct does not recur. Mr Kippen gave evidence of the steps taken by the applicant upon becoming aware of the underpayment issue and the use of a new payroll program.
e.The nature of the breaches for failing to provide records and information. Although the applicant failed to provide documents to the ABF within the specified timeframe, those documents were in fact provided to the ABF, and the Tribunal regards this breach to be less serious. In relation to the delay in providing records and information which were due on 20 September 2017, the representative submitted that the applicant was not originally aware that the request had come from a Government department and was reluctant to provide personal information about its employees. In relation to the delay in providing records and information which were due on 21 December 2017, the Tribunal notes that these documents were provided on 28 December 2017.
Having regard to all of the evidence, the Tribunal finds that it is reasonable to disregard the adverse information. Accordingly, the requirement in reg 5.19(4)(b)(ii) is met.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licensing, 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 Queensland, the relevant occupation is Vehicle Painter, and the date of application is 24 October 2018.
Mr Kennett stated at the hearing that it is not mandatory in Queensland for a Vehicle Painter to hold a licence. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence.
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.
Without setting out the circumstances again in full, the Tribunal notes that the ABF found that the applicant had underpaid employees and the Tribunal is satisfied that the underpayments amounted to $477.38 and $1,059.32 respectively for the two employees. The Tribunal finds that these contraventions constitute a non-compliance with workplace relations laws. It is therefore necessary for the Tribunal to determine whether the applicant has a satisfactory (emphasis by the Tribunal) record of compliance with the relevant laws.
The term ‘satisfactory record’ is not defined in the Regulations. The Macquarie Dictionary (accessed October 2022) defines satisfactory as ‘affording satisfaction, fulfilling all demands or requirements’. The Oxford Dictionary of English (Third edition 2010) provides a lower standard, defining satisfactory as ‘acceptable, though not outstanding or perfect’. In Nice Shoes Aust Pty Ltd v MIMIA (2004) FCA 252, the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in training requirements for standard business sponsors in the since-repealed reg 1.20D(2)(c)(ii). In that case, the Court observed that the difficulty with such a definition is that it provides no measure or standard against to determine whether something is ‘satisfactory’. Looking to the broader context of reg 1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia. Critically, the Court observed that the relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant had such a satisfactory record.
This suggests that in this context, the criterion would not necessarily require the employer to demonstrate a ‘blemish-free’ record of compliance with workplace relations laws. Instead, the level of compliance by the employer may instead be of such a level to satisfy the decision maker that the employer will be able to fulfil its workplace obligations to the employee such that the nomination should be approved.
There is also some support in Departmental policy for such an approach. Dealing with a different class of visa, policy suggests a fair and reasonable approach in assessment of this criterion should be applied in all cases. It states that the requirement is not intended to be applied in every instance of a breach of Australian law and that ‘minor breaches’ of the law, or a single more serious breach, may be disregarded, especially if the applicant can demonstrate that the breach has been rectified and there has been no recurrence of the breach for a reasonable period. Once again, this policy is not binding on the Tribunal, but may be considered.
Taking into account all of the evidence referred to in the Tribunal’s consideration of the requirement under reg 5.19(4)(b), and particularly the factors set out in paragraph 40 above, the Tribunal is satisfied that, although the applicant does not have a blameless record of compliance with workplace laws, it does have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
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.
The records of the Department confirm that the nomination training contribution charge payable by the applicant has been paid in full. The Tribunal is satisfied that there is no debt due by the applicant relating to recovery of nomination training contribution charges or penalties for underpayment.
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 nomination application was made on 24 October 2018. The applicant has produced evidence that the nominee held a Subclass 457 visa which was granted on 29 September 2016 and was in effect until 29 October 2018.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (c) and (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 Vehicle Painter.
Firstly, the occupation must be listed in the ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same four 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).
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 the ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
The occupation of Vehicle Painter is listed in the ANZSCO and has the same four-digit ANZSCO occupation unit group code (Vehicle Painters 3243) as the occupation in relation to which the nominee’s most recently held Subclass 457 visa was granted.
The nominee, as the holder of a Subclass 457 visa on 18 April 2017, is a ‘specified person’ as defined in instrument LIN 22/038 and is exempt from the operation of reg 5.19(5)(c).
The applicant’s submission dated 24 August 2022 provided evidence of the tasks performed by the nominee. The nominee has over 25 years of experience in the industry and has been employed full-time by the applicant since October 2016. Mr Kippen described the nominee as one of the most talented and hard-working Vehicle Painters he had ever met. The ANZSCO classification for this unit group provides that the occupation is a Skill Level 3 occupation and that most occupations in this unit group have a skill level commensurate with the qualification of AQF Certificate III including at least two years on-the-job training, and that at least three years of relevant experience may substitute for the formal qualifications. Evidence has been produced to the Tribunal that the nominee holds various certificates in Vehicle Painting issued in the United Kingdom and that he has satisfactorily completed a Skilled Migration Assessment as a Vehicle Painter. The Tribunal is satisfied that there is no information known to Immigration to indicate that the nominee is not genuinely performing the tasks of the occupation of Vehicle Painter.
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) and (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 three years in the period of four 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 was granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least three years during the period of four years immediately before the nomination application was made. The three 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 three years (not including any periods of unpaid leave) during the periods of four years immediately before the nomination application was made.
In this case, the nomination application was made on 24 October 2018. The relevant instrument made under reg 5.19(6) is LIN 22/038. 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, so that the periods of three years and four years respectively in regs 5.19(5)(e) and (f) are to be replaced by the periods of two years and three years respectively.
As stated previously in these Reasons, the nominee was granted a Subclass 457 visa on 29 October 2016 which was in effect until 29 October 2018. The nomination application was made on 24 October 2018. Accordingly, the requirement in reg 5.19(5)(e) is met.
The applicant has provided PAYG payment summaries for the nominee for the 2017 to 2019 financial years which confirm his full-time employment from 17 October 2016. Mr Kippen gave evidence that the nominee was employed full-time by the applicant from October 2016 to the date of the hearing in the position of Vehicle Painter. Accordingly, the requirement in reg 5.19(5)(f) is met.
The nominee’s Subclass 457 visa was not granted in relation to an occupation specified in an instrument under reg 2.72(13). Accordingly, reg 5.19(5)(g) does not apply.
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.
The records of the Department confirm that the applicant was approved as a standard business sponsor from 15 June 2016 for five years and was the standard business sponsor who last identified the nominee in a nomination under s 140GB of the Act.
The applicant produced ASIC evidence of registration of the applicant and its business name Bissell’s Paint & Panel together with financial reports and tax returns to the 2021 financial year together with business activity statements to the month of March 2022. The financial reports and activity statements disclose that the applicant recorded sales exceeding $4,400,000 in the 2021 financial year and exceeding $3,900,000 for the nine-month period to March 2022. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely a vehicle repair business.
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 LIN 19/212): reg 5.19(7).
The occupation of Vehicle Painter is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with regs 5.19(5)(j) and (k).
Regulation 5.19(5)(j) requires that the application identifies a need for the nominator to employ the nominee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just as a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(5)(j) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(5)(j) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(5)(j)and reg 5.19(5)(k) which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(5)(l), which requires satisfaction that the employee will be employed on a full‑time basis in the position for at least two years. Given the uncertain scope of reg 5.19(5)(j), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(5)(k), the Tribunal considers that this issue is more appropriately considered under reg 5.19(5)(k).
[1] Dictionary.com (accessed November 2022).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

The Tribunal considers that reg 5.19(5)(j) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Vehicle Painter and on page 8 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the position of Vehicle Painter under the applicant’s direct control such that reg 5.19(5)(j) is met.
Regulation 5.19(5)(k) requires that there is a genuine need for the nominee to be employed in the position under the direct control of the applicant. In its submission dated 24 August 2022, the applicant stated that the nominee had become an invaluable employee. The applicant stated that it is constantly looking for Vehicle Painters as experienced tradesmen in the industry are difficult to come by. The applicant further stated that pressure on its business had increased during the COVID-19 pandemic and that the skills shortage for businesses on the Sunshine Coast of Queensland had intensified dramatically. Mr Kippen stated at the hearing that the applicant would struggle without the services of the nominee. He reaffirmed that the nominee had been employed on a full-time basis for over six years. The Tribunal is satisfied that there is a genuine need for the nominee to be employed in the position of Vehicle Painter under the direct control of the applicant.
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) and (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 two years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): 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 two 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.
Full-time employment for two years
As previously recorded in these reasons, the occupation of Vehicle Painter is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with reg 5.19(5)(l).
The employment contract dated 17 October 2018 produced to the Tribunal provides that the nominee is to work full-time (40 hours per week). The document provides that the agreement is to commence upon the grant of the nominee’s Subclass 187 visa and that the employment is for a minimum period of two years. The nominee is to be employed in the position of Vehicle Painter. The job description provided to the Tribunal refers to the duties and responsibilities of a Vehicle Painter. The Tribunal finds that the nominee will be employed on a full-time basis in the position for at least two years.
Terms and conditions of employment not to include an express exclusion of the possibility of extension
The employment contract expressly provides that there is no exclusion of extension of the term of employment. Accordingly, the Tribunal finds that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment.
The applicant’s capacity to employ the nominee for at least two years and to pay the annual market salary rate for the occupation
As is recorded later in these Reasons, the applicant has determined the annual market salary rate at $55,588 per annum. This is equivalent to a package including superannuation of $61,424.74 per annum.
The applicant’s financial records disclose that it recorded sales exceeding $4,400,000 in the 2021 financial year and that it recorded a net profit before tax of $304,689 in that year. That profit was recorded after the applicant paid a Director’s salary and superannuation of $101,519. As at 30 June 2021, the applicant’s assets exceeded its liabilities by $562,231. The Tribunal is satisfied that the applicant’s business has the capacity to employ the nominee for at least two years and to pay him 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 (TSMIT) specified in the instrument, 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).
The Tribunal is satisfied that the nominee’s annual earnings are $72,800. The specified amount of annual earnings in instrument IMMI 18/033 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.
Regulation 2.72(15)(c) – has the applicant determined the annual market salary rate for the occupation in accordance with the instrument?
The applicant has provided evidence that it does not have an Australian worker performing equivalent work to the nominee. The instrument provides that, in these circumstances, where there is a fair work instrument, a state industrial instrument or transitional instrument applicable to the nominated occupation, the annual market salary rate is the annual earnings of an equivalent worker specified in those instruments. The applicant has provided evidence that there is an award applicable to the nominated occupation, namely the Vehicle Repair, Services and Retail Award. The applicant has produced evidence that the annual earnings of an equivalent Australian worker, calculated by reference to the relevant provisions of the award, amount to $55,588. The Tribunal is satisfied that the applicant has determined the annual market salary rate in accordance with the instrument at $55,588 per annum.

100. For these reasons the requirements of reg 2.72(15)(c) are met.
Regulation 2.72(15)(d) – is the annual market salary rate, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT?
101. The TSMIT specified in IMMI 18/033 is $53,900 per annum. The annual market salary rate as determined by the applicant in accordance with the instrument exceeds the TSMIT.
102. For these reasons the requirements of reg 2.72(15)(d) are met.
Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the annual market salary rate for the occupation as determined?
103. The nominee’s annual earnings will be $72,800. These annual earnings are not less than the annual market salary rate of $55,588 as determined by the applicant.
104. For these reasons the requirements of reg 2.72(15)(e) are met.
Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?
105. The nominee’s annual earnings, excluding any non-monetary benefits, will be $72,800. These annual earnings exceed the TSMIT of $53,900.
106. For these reasons the requirements of reg 2.72(15)(f) are met.
Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the annual market salary rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?
107. The applicant provided evidence that the annual market salary rate is in accordance with the relevant award. The applicant also produced evidence from the platform PayScale that the average base salary for an Automotive Painter in Australia is $58,003 per annum and from the platform Jora that the average salary for a Vehicle Spray Painter on the Sunshine Coast, Queensland ranges between $50,000 and $80,000 per annum. The applicant also produced a job advertisement for the position of Automotive Spray Painter on the Sunshine Coast with an advertised salary of $60,000 to $74,999 per annum.
108. There is no evidence before the Tribunal to indicate that the annual market salary rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation.
109. For these reasons the requirements of reg 2.72(15)(g) are met.
110. 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)
111. 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.
112. The employment contract provides that the applicant will make superannuation payments on behalf of the nominee in accordance with the Superannuation Guarantee. The contract further provides that the nominee is entitled to annual leave, personal leave, carer’s leave, parental leave and compassionate leave in accordance with the Fair Work Act 2009. The nominee is entitled to long service leave. There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than in relation to earnings) 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.
113. 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)
114. 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 two 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 two years and pay them at least the annual market salary rate.
115. The Tribunal has set out in these Reasons the Tribunal’s consideration of the information provided by the applicant for the purposes of regs 5.19(k) to (n). The Tribunal finds that the applicant has provided the information required by the Minister for the purposes of those regulations.
116. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.
117. 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
118. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
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 549

21 February 2023

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