Grass Scorpions Pty Ltd (Migration)

Grass Scorpions Pty Ltd (Migration) [2022] AATA 2691 (21 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Grass Scorpions Pty Ltd
CASE NUMBER:  1907160
HOME AFFAIRS REFERENCE(S):          BCC2019/592944
APPLICANT’S REPRESENTATIVE:        Mr Tanveer Singh, Vision Overseas Group
MEMBER:Amanda Mendes Da Costa
DATE:21 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 21 June 2022 at 12.05pm

CATCHWORDS
MIGRATION – nomination – Short-term stream –position associated with the nominated occupation is not genuine – the application was lodged to secure an immigration outcome – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 2.72, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 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 22 February 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 Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy Reg 2.72(10(a) of the Regulations because the position associated with the nominated occupation was not genuine.
Mr John Vibin, a director of the company, appeared before the Tribunal (on behalf of the applicant) on 20 May 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative also participated in the hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing, that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The documents provided by the applicant for the purpose of the review include the following:
·ASIC records for the applicant company.
·Genuine position statement.
·Offer of employment, dated 21 February 2022.
·Job application (undated) completed by the nominee for the nominated position.
·Bundle of invoices issued to the applicant’s clients.
·Organisational chart.
·Updated employment contract dated 20 May 2022.
·Reference for the nominee, Mr Binil Varghese, undated.
·Reference for the nominee, Siyas Mannarthodi, dated 1 August 2018.
·Letter dated 8 December 2018 by Simply Recruit Me confirming that the applicant engaged the company to advertise the position of Landscape Gardener on its behalf.
·Advertisements for the position of Landscape Gardener.
·Letters of confirmation of sponsorship of the nominee, John Vibin, dated 25 February 2022.
·Labour market testing report (LMTR), Simply Recruit Me, undated.
·Educational documents for the nominee.
·Letters of support, John Vibin, dated 28 February 2022.
·Written submissions dated 13 May 2022.
·Email to the applicant, Mr Kurian Cheriyan, undated.
·Financial report for the years ended 30 June 2019, 2020 and 2021.
·Notification of approval of the nominee as a standard business sponsor for the period 16 January 2019 to 16 January 2024.
·Business Plan, Noble Thomas (CPA), undated.
·Business activity statements (BAS) for the periods October to December 2019; January to March 2020; April to June 2020; October to December 2020; January to March 2021; April to June 2021; July to September 2021; and October to December 2021.
Following the hearing[1], the Tribunal wrote to the applicant, inviting it to provide any additional documentation which demonstrated its financial ability to employ a Landscape Gardner on a full-time basis. The applicant was requested to provide any such information by 17 June 2022. On that date the applicant provided the Tribunal with the following documents:
[1] By letter dated 3 June 2022.
·Accountant’s letter dated 16 June 2022.
·BAS for the period January to March 2022.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
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’s written submissions may be summarised as follows:
·The applicant’s business involves the provision of services including lawn cutting, edging, trimming and fertilizing lawns for healthy growth, preparing landscape beds by wedding and mulching, trimming tree in different stages of growth, removing damage and dead trees, advising clients about designing, planting and maintaining their gardens, and providing guidance regarding watering gardens.
·The nominee (John Binoy) has completed a Diploma in Floriculture and Landscape Gardening in India. He has the appropriate qualifications and skills to perform the role of Landscape Gardener and has worked in the field since 2015.
·The nominated position and the duties associated with it will assist the applicant to maintain the quality of the services provided by it to its customers, which is primarily in the field of gardening services.
·The applicant has taken reasonable steps to find a local employee to fill the nominated position but has been unsuccessful in these attempts. When the applicant managed to employ a Landscape Gardener, the person left their employment after six months. The applicant currently has only one person employed in the position of Landscape Gardener.
·The applicant has experienced an increase in business activity over the previous few months. The applicant will be unable to commit to undertaking some of its upcoming projects if it is unable to employ the nominee in the nominated occupation.
·The nomination application was lodged to fill a genuine skill shortage in the business rather than to facilitate the grant of a visa for the nominee.
Mr Vibin is the director of the company and operator of the applicant’s business. In his oral evidence, Mr Vibin told the Tribunal that he had been working in the landscape gardening field for approximately nine years – four of which as an employee, two of which as a sole trader and for nearly four years through the activities of the company (which was registered on 13 August 2018). This business provides gardening services including garden design and landscaping, garden maintenance, planting of turf, plants and trees, providing advice re clients gardening needs, constructing garden beds and installing pavers and advising clients regarding watering and plant varieties. The applicant targets clients with large suburban backyards, commercial sites, public parks and body corporate apartment blocks. A large part of its clientele are located in the southern and south eastern metropolitan area of Melbourne.
The Tribunal notes that the applicant’s website contains numerous photographs of gardening work undertaken by Mr Vibin and discussed these photographs with him during the hearing. Mr Vibin confirmed that the photographs showed gardens which he had designed and various planting, paving and landscaping work undertaken by him.
The business advertises its services through word of mouth and on social media. Its clients include private residents, those funded by the Transport Accident Commission and the National Disability Insurance Service, and corporate clients.
Mr Vibin explained that if the nomination application is approved and the nominee is employed by the applicant, he will be responsible for providing gardening services, including those set out in the genuine position statement.
The Tribunal notes that the nominee holds a Diploma in Floriculture and Landscape Gardening and has also worked as a Landscape Gardener in India. The Tribunal has considered the reference by Mr Varghese who is the CEO of ANTA Builders and Developers Pvt Limited, which is located in Kerala and Cochin, India. Mr Varghese advises that the nominee was employed by the company as a Landscape Gardener from June 2016 to April 2018. He further states that the nominee’s duties included:
·planning and constructing residential gardens, planting herbs, flowers, shrubs and trees;
·establishing new lawns;
·applying fertilizers;
·transplanting trees form one location to another; and maintaining gardens and lawns.
Based on the above information, the Tribunal is satisfied that the nominee possesses the requisite qualifications and experience for the nominated position.
The organisational chart shows the following positions within the business:
·     Director;
·     Accounts Manager;
·     Contract Manager
·     Supervisor;
·     Office Manager;
·     Outdoor Purchase Team; and
·     Landscaping, Maintenance and Yard Workers.
However, the genuine position statement shows that apart from Mr Vibin the applicant only engages the services of one contractor and does not have any employees. When the Tribunal questioned Mr Vibin about this he explained that the organisational chart was not correct and the genuine position statement accurately currently indicated the current position of the business which does not have any employees and uses the services of one contractor on a casual basis. He confirmed that for the 2021 financial year the applicant paid this contractor $6,414.00 in fees.
The Tribunal notes that the financial statements for the year ended 30 June 2019 show that the total sales for the business were $128,351.00 with total expenses of $35,809.65. This left a total profit before tax of $1,041.35. The statements further indicate that in the 2019 financial year $91,500.00 was paid by the applicant to a director’s account. There were no sums paid to contractors in this financial year.
The financial statements for the year ended 30 June 2020 show that the total sales for the business were $101,958.95 and the business also received Job Keeper payments in the sum of $3,000, with a total income of $104,958.95,. The total expenses for the business in that year were $99,234.08, leaving a taxable profit of $5,724.87. The statements further indicate that in the 2020 financial year $65,000.00 was paid by the applicant to a Director’s account.
The financial statements for the year ended 2021 show that the total sales for the business were $89,248.00 and the business also received Job Keeper payments in the sum of $30,900.00 with a total income of $120,148.00. The total expenses for the business in that year were $117,722.82, leaving a taxable profit of $2,425.18. The statements further indicate that in the 2021 financial year $48,000.00 was paid by the applicant into a Director’s account and $6,414.00 was paid to contractors.
The BAS provided do not show any payments by the applicant in wages and salaries. The total sales figures indicated are as follows:
·October to December 2019               $39,628.00
·January to March 2020  $28,508.00
·April to June 2020  $16,121.00
·October to December 2020               $22,343.00
·January to March 2021  $27,427.00
·July to September 2021  $18,336.00
·October to December 2021               $28,286.00
During the hearing the Tribunal discussed these figures with Mr Vibin, which he said provided an accurate account of the company’s finances over the period June 2018 to June 2021. Mr Vibin explained that the business had been adversely affected by government restrictions imposed as a result of the COVID-19 pandemic. This accounts for the decrease in the total sales of the business in 2020 and in particular in 2021. Mr Vibin told the Tribunal that since the lifting of such restrictions, the business had returned to its pre pandemic levels and he was turning away prospective customers because he lacked the necessary staff to cope with the work being offered to him.
The Tribunal suggested that the figures provided for the business (including the pre pandemic figures for 2019) did not indicate to it that the business had the capacity to pay the nominated salary for the nominee of $54,500 per annum. In response, Mr Vibin explained that although the business could not currently afford the salary of $54,500 for the nominee, he anticipated that if the nomination application was approved and he was employed in the nominated occupation, he would generate more income than the cost of employing him. Mr Vibin reiterated that the business has more prospective clients than the business can service and that the only reasons for it not growing is the inability of the applicant to find a suitable employee to perform the work. Mr Vibin said the Tribunal that despite advertising for the nominated position on several occasions and engaging a recruitment firm to advertise for and interview suitable candidates, the applicant had been unable to find a suitably qualified and experienced person to fill the nominated position.
Mr Vibin further explained that the contractor employed by the business is only prepared to work on a casual basis and in order for him to grow the business, he requires a permanent full-time employee. The nominee is central to these plans as he is suitably qualified and experienced for the role, is hardworking and loyal and can be trusted to work on his own without close supervision. The Tribunal discussed the delegate’s decision not to approve the nomination application and her concern that the nominated position was not genuine but was created by Mr Vibin in order to achieve a favourable migration out-come for his brother (the nominee). In response, Mr Vibin explained that the fact the nominee is related to him does not affect the need by the business for a full-time employee in the nominated position.
The Tribunal has considered the genuine position statement and labour market testing report which each set out the tasks to be undertaken by the nominee in the nominated position. These include:
·planning and executing small scale landscaping operations together with maintaining grounds and of private businesses and residences;
·preparing and grading terrain, applying fertilizers, seeding and sodding lawns plus transplanting shrubs and plants, using manual power-operated equipment;
·planning, planting and cultivating lawns, using gardening implements and power-operated equipment;
·repairing established lawns using seed mixtures and fertilisers recommended for particular soil type location;
·locating plants, shrubs, trees and also flowers selected by the property owner or those recommended for particular landscape effect;
·mowing and trimming lawns using hand or power mowers;
·trimming shrubs and trees;
·cleaning grounds using rakes, brooms and hoses;
·spraying trees and shrubs and applying supplemental liquid and dry nutrients to lawn trees;
·may dig trenches and install drain tiles; and
·may make repairs to concrete and asphalt walks driveways.
The Tribunal has further considered the tasks for the nominated position (Landscape Gardener ANZSCO 362213) set out in the ANZSCO dictionary which includes the following:
·preparing and maintaining seedbeds and growing sites;
·propagating and planting trees, bushes, hedges, flowers and bulbs;
·preparing lawn areas by spreading topsoil and planting grass, and by laying instant turf;
·maintaining planted and grassed areas by weeding, trimming, fertilising, watering and mowing;
·pruning trees and hedges, and installing plant support and protection devices;
·preparing plans and drawings, selecting materials and plants, and scheduling landscape construction;
·setting out and installing hardscape and softscape structures;
·constructing gravel and paved areas, walls, fences, pergolas, ponds, barbeques and garden furniture;
·examining trees to assess their condition and determine treatment;
·lopping limbs off trees and shaping branches using chain and handsaws;
·spraying and dusting plants and trees to control insects and disease and felling diseased trees.
The Tribunal is satisfied that the tasks sets out in the position statement and market testing report, together with the oral evidence of Mr Vibin regarding the nominee’s proposed duties are commensurate with the tasks set out in the ANZSCO dictionary of the nominate occupation.
The Tribunal has considered the business plan prepared by Noble Thomas, in which the opportunities for the business are listed as follows:
·Not many new businesses coming into the field of landscape gardening.
·There are many suppliers of plants and turf in the South East region of Melbourne due to the large amount of land. This will reduce the cost of sourcing supplies for projects.
·As gardens require maintenance, there is an opportunity for the provision of this service to clients.
·The market for landscaping is generally resistant to economic downturns because most prospective customers view lawn care as a necessity and are unwilling to undertake this task themselves.
·There is an opportunity for repeat business.
The Busines Plan also lists the weaknesses of the business as being a shortage of skilled workers to provide an extended services and a limitation of time to handle multiple customers.

In his letter of support and confirmation of sponsorship letters, Mr Vibin states that his business is experiencing difficulties recruiting suitably qualified and experienced staff. He explains that he has attempted to recruit a landscape gardener via advertisements, referral and word of mouth but all without success. Although the business had employment staff for short periods of time, they were not prepared to continue with their employment. Mr Vibin further states that although the business is receiving approaches from prospective clients with the offer of new projects, it is unable to accept them due to the lack of available staff. He confirms that he is prepared to sponsor the nominee for the nominated position.
During the hearing, Mr Vibin confirmed the information contained in his letter of support and told the Tribunal that although he had plans to expand the business – particularly in relation to the provision of gardening services to commercial premises and Council and government properties, he was unable to do this because of the lack of available landscape gardeners.
The letter of offer of work from Mr Cheriyan (a director of A better Life Home Care Company Pty Ltd) indicates that the company is prepared to offer the applicant a permanent position as a lawnmower.
The LMTR contains information about the assistance given by Simply Recruit Me to the applicant to develop an advertisement published on various online employment platforms for the position of landscape gardener. The report indicates that the applicant received 86 applications for this position. After the qualified candidates had been short-listed, the consultants conducted individual interviews, which did not result in any suitable candidates for the position.
The invoices provided show charges made to various clients for the provision of gardening services by the applicant.
The letter by the applicant’s accountant[2] states:
[2] Tax Care Australia
We act as tax agent for Grass Scorpion Pty Ltd.
We confirm that to the best of our knowledge that Grass Scorpion Pty Ltd is trading at a profit.
Also, the nominated position, Landscape Gardener is genuinely required on a full-time basis in the business and that need is for at least 2 years (ongoing position/need). The business is operating since 2019 and is prominent in the field. We cans see that the business has a strong financial capacity for business operation and to pay all their employees including the nominee.
This information is true to the best of our knowledge and has been confirmed from independent enquiries with the director of the company and records provided.
The BAS for the period January to March 2022 shows that total sales for the business is $22,055.00 and the amount owing to the ATO by applicant is $1,578.00.
Findings
The Tribunal accepts that the provisions of reg 2.72(10)(a) do not prevent a nominator from nominating a position for a prospective employee who is a relative of the nominator or with the nominator provide that the position is a genuine one.
In this respect, the Tribunal does not consider that the sibling relationship between Mr Vibin (a director of the applicant company) and the nominee necessarily indicates that the nominated position has been created primarily for the purpose of creating a migration outcome for the nominee.
The Tribunal accepts that the applicant has been operating a landscaping and gardening business for the past four years. The Business was initially established by Mr Vibin who prior to the registration of the company, operated it as a sole trader for two years. Mr Vibin has continued to work in the business as its only employee with the assistance of a contractor who is engaged on a casual basis. The Tribunal further accepts that the business has attempted to recruit further staff to assist Mr Vibin but this has proved difficult, as evidenced by the LMTR and the oral evidence of Mr Vibin.
Based on the nominee’s qualifications and experience as a Landscape Gardener, the Tribunal is satisfied that he has the requisite skills to undertake the nominated position. He is yet to be employed in the nominated position which is due to the terms and conditions of his current visa, which do not permit him to work in Australia.
The Tribunal notes that the financial statement for the year ended 30 June 2019 shows that the applicant made a net profit before tax of $1,041.35 after payment of expenses and a director’s payment to Mr Vibin of $128,351.00. The company did not make any other payments in salaries or to contractors for that year.
For the year ended 30 June 2020 the applicant made a net profit before tax of $2,425.18 after a director’s payment to Mr Vibin of $48,000.00 and a payment to contractors of $6,414.00. The Tribunal accepts that the business was affected to some extent by the government restrictions on businesses in Victoria (as a result of the Covid-19 pandemic) in 2020. However, it does not accept that in either 2019 or 2020 the financial statements indicate that the business was in a position to pay the salary of a full-time employee in the nominated position.
The BAS for the January to March 2021, July to September 2021, October 2021 and January to March 2022 show that for a nine-month period in 2021 the applicant generated a total income of $74,049. However, the applicant has not provided any information about the total expenses incurred by the applicant for that period or any payments made to either Mr Vibin or contractors.
The Tribunal has considered the letter from the applicant’s accountant regarding the financial position of the business. Although the accountant has expressed an opinion that the business is making a profit and has a strong financial capacity to pay is employees it has not provided any explanation of the circumstances which have caused them to hold this opinion or how the applicant’s financial position is likely to improve in the future, thereby enabling it to employ the nominee. Accordingly, the Tribunal attaches limited weight to this letter.
The Tribunal notes that Mr Vibin has plans to grow the business and in particular to expand the services provided to Body Corporate and other commercial customers. It further accepts that the business will have the capacity to take on more work, resulting in an increase in the revenue, if it employs a second full time Landscape Gardener. Although the Tribunal has been provided with a letter from a prospective customer enquiring about the ability of the applicant to undertake gardening work, it has not provided any documentation indicative of the revenue which such work would generate. In this respect, the Tribunal that the Business Plan does not contain any information about the amount of revenue which could be generated by an increase in services provided by the business.
Accordingly, the Tribunal is not satisfied that the documentation provided demonstrates that the applicant will be able to generate sufficient additional work and the corresponding revenue to generate the necessary income to pay the proposed salary for the nominated position of $54,500 plus superannuation.
Based on the above findings the Tribunal is not satisfied that position associated with the nominated position is genuine and finds the applicant does not meet the requirements of reg 2.72(10)(a).
Given the Tribunal has found that the applicant does not meet one of the requirements for the approval of the nomination, it does not consider that it is necessary to consider the remaining requirements in reg 2.72.
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.
Amanda Mendes Da Costa
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 2691

21 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness