Hawkins Consolidated Pty Ltd as trustee for The Hawkins Consolidated Trust & Snippe Investments Pty Ltd as trustee for the Snippe Investments Trust (Migration)

Hawkins Consolidated Pty Ltd as trustee for The Hawkins Consolidated Trust & Snippe Investments Pty Ltd as trustee for the Snippe Investments Trust (Migration) [2022] AATA 2914 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hawkins Consolidated Pty Ltd as trustee for The Hawkins Consolidated Trust & Snippe Investments Pty Ltd as trustee for the Snippe Investments Trust
REPRESENTATIVE:  Mr James Hammond (MARN: 0636764)
CASE NUMBER:  1826984
HOME AFFAIRS REFERENCE(S):          BCC2018/2725720
MEMBER:Justin Meyer
DATE:1 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 1 March 2022 at 8:00am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Program or Project Administrator – employment under contract – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360
Migration Regulations 1994 (Cth), rr 2.72, 2.73

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 29 August 2018 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 20 July 2018. 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 Subregulation 2.72(11) of the Migration Regulations, because it requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that contract (signed by the employer and the nominee) to the Minister, unless the nominated occupation is an occupation specified by the Minister in an instrument made under subregulation 2.72(13). The nominated occupation of Program or Project Administrator - 511112 is not an occupation specified by the Minister in an instrument made under subregulation 2.72(13). Therefore, a copy of a written contract signed by both parties to the contract is required. The applicant did not provide the required contract of employment. In the absence of a written contract of employment, the delegate was not satisfied that the applicant met paragraph 2.72(11)(e) and was not satisfied that the applicant met subregulation 2.72(11). Subsections 140GB(2) and (3) of the Migration Act, relevantly provide that a nomination application must satisfy the prescribed criteria in order to be approved.
After the Tribunal received submissions pursuant to a s.359(2) letter and further evidence since the applicant’s application to the Tribunal, the Tribunal considered that a hearing was not required. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
Having reviewed the application form on the Department of Home Affairs’ (the Department) file, the Tribunal is satisfied that:
a.the applicant nominated a relevant occupation under s.140GB(1)(b) being Program or Project administrator (ANZSCO code 511112): r.2.73(1A)(a)
b.the nomination was made using the approved form and fee per r. 2.73(3), (4) and (5);
c.reg 2.73(5A) (‘The nomination was accompanied by any applicable nomination training contribution charge’) is not applicable as the provision came into force after the visa application was made;
d.the nomination is in the Short-term stream as it is a short term specified skilled occupation;
e.the applicant identified the nominee, Ms Sally O’Brien, in the nomination, per r.2.73(8);
f.the nomination included the name of the occupation and the corresponding 6 digit code, (Program or Project Administrator ANZSCO 511112), the location at which the occupation will be carried out (Melbourne, 3000), the proposed period of stay for a visa granted on the basis of the nomination (up to 2 years), the annual turnover for the nomination ($453,562), as per r.2.73(9);
g.the nomination included written certification that the applicant had not engaged in conduct that contravenes s.245AR(1) of the Act: r.2.73(12);
h.the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and
i.the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).
For these reasons the requirements of r.2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no material before the Tribunal including Departmental systems, there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
For this reason the requirements of r.2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant was approved as a standard business sponsor on 28 August 2018, valid to 28 August 2023, as evidenced by the relevant document from the department.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
The applicant submits that it does owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. The applicant is not liable to pay a nomination training contribution charge as the application was lodged before 12 August 2018. The Tribunal has nothing before it to suggest this and accepts that there is no such debt.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee Ms Sally O’Brien is not the holder of a subclass 457 or subclass 482 visa, the requirements of r.2.72(6) and r.2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation Program or Project Administrator ANZSCO 511112 is specified in the Short Term Skilled Occupation List stream in IMMI18/048. The occupation is not subject to any of the Inapplicability Conditions set out in the notes to that instrument.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
A contract of employment between the nominee and applicant was provided, and it specifies that the position is 38 hours per week, and therefore full time. Also provided to the Tribunal the following information to demonstrate that the position is genuine:
·Tax returns and financial statements for the last 2 years and BAS from April 2019 – Mar 2021.
·Interim financial statement to June 2021.
·Payslips and PAYG information summaries as evidence that the nominee remains employed at the business in the nominated position.
·Organisation structure.
·Position descriptions for other roles in the business.
·Project timelines as evidence of the existence and complexity of the project coordination function in the business.
·Position statement explaining the need for the position.
·Business website.
·Skill Assessment demonstrating that Vetassess assessed the role to be closely related to the occupation of Program or Project Administrator, and that the nominee has the skills to perform the position
The Tribunal’s examination of the employer’s website indicates an active, functioning company with considerable client services and there is a depiction of the nominee as an integral part of the team.
Financials statements and tax returns indicate a partnership with earnings of approximately in line with what would be typical for a successful consulting business, with reasonable assets. There are around five key personnel in a boutique business and the partnership has had steady growth over years. The business appears profitable.
It is plausible that a business operation such as this would need a program or project administrator full time. The position statement explaining the need for the position included the following terms which aligned with the ANZSCO descriptions:
·     Leading and managing small-medium client projects
·     Prepare, co-design and facilitate Ideation workshops and processes
·     Supporting corporate project teams in creating relevant experiments in order to achieve market validation Contribute to the development of project methodology and plan Coordinate project management activities, resources, equipment and information Liaising with clients to identify and define project requirements, scope and Objectives
·     Ensuring that clients’ needs are met as the project evolves Keeping project members informed and engaged Make sure that clients’ needs are met as projects evolve
·     Coordinating project schedules, resources, equipment and information
·     Supporting and facilitate corporate teams through an end-to-end best practice innovation process
·     Play a pivotal role in the coordination, administration and delivery of a major project
·     Play an important role in the coordination, administration and delivery of other Projects
·     Develop and maintain project schedules and timeframes including project planning and tracking Administrative tasks, including the coordination of meetings, editing and proofreading output documents and reports, recording meeting decisions and minutes Break projects into doable actions and set timeframes
·     Assign tasks to people and teams and assist with schedule management
·     Liaising with external parties Liaise with clients to identify and define requirements, scope and objectives Contribute to delivering medium-large projects as part of a bigger team Communication with internal and external (senior) stakeholders to build and maintain strong relationships and maintain strong effective networks to achieve the project objectives
·     Setting up effective process and systems
·     Make sure that clients’ needs are met as projects evolve Ensuring that clients’ needs are met as the project evolves
·     Play a pivotal role in conducting and facilitating deep customer research Conducting some customer research
·     Other administrative and project duties as required
·     Win new and grow existing business, independently developing and maintaining great relationships with clients
The position associated with the nominated occupation is genuine, in that it aligns with the occupation of Program or Project Administrator and genuinely exists given the scope and scale of the business.
The position (full-time) associated with the nominated occupation is genuine. I find that r.2.72(10)(a) and (b) are met.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI13/067 In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11)) must be met.
The nominated occupation of Program or Project Administrator is not specified in an instrument. The applicant has provided a copy of the contract of employment between it and the nominee dated 21 January 2020.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033 (currently AUD53,900). The current employment contract provides that the nominee will be paid a base salary of AUD85,000 per year plus superannuation. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
For these reasons the requirements of reg 2.72(15)(c) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) does apply. There is no evidence that the applicant has engaged in discriminatory recruitment practices and r.2.72(18)(b) is met.
The employment contract complies with Australian workplace legislation, including the National Employment Standards (NES). The following documents were provided to demonstrate that the salary of AUD85,000 and terms and conditions offered are no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent work at the same location:
·     Payscale salary survey dated 5 August 2021 specifying an average base salary for a Program Administrator in Melbourne is AUD70,424 per year
·     Indeed salary survey dated 5 August 2021 specifying an average base salary for a Program Coordinator in Melbourne is AUD74,223 per year
·     Job advertisement for a Project Coordinator dated 5 August 2021 specifying a salary package of AUD80,000 for comparable full-time role
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does not apply.
For these reasons the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
The Tribunal is satisfied that the applicant does not fall within the major disaster or skill and occupational exemptions in s.140GBB-140GBC, and there is no evidence that the Minister has determined that LMT would be inconsistent with a specified international trade obligation. The applicant is therefore required to meet LMT.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/059 (this provides that, for nominations lodged after 18 March 2018 but before 12 June 2018, the period is 12 months prior to the nomination application being lodged). In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
For these purposes, LMT means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the LMT condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/059 (this provides that, for nominations lodged after 18 March 2018 but before 12 June 2018, the period is 12 months prior to the nomination application being lodged).
In addition:
oThe nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
oThe labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
oThe nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
oThe Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position (s.140GBA(3)(d)).
oThe evidence of LMT that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
The applicant provided information in the form and documents regarding its attempts to recruit a suitably qualified and experienced Australian citizen or permanent resident including the following:
·Seek invoice and job advertisement, 17/7/18
·Indeed job advertisement
·LinkedIn invoice and LinkedIn recruitment efforts, April 218
The evidence of this labour market testing accompanied the application. There is evidence of a person responding to approaches, and declining the approach for example. These efforts took place within the requisite timeframe.
As I am satisfied that the position was advertised broadly, indeed nationally for the requisite 12 month period Section 140GBA is met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The nomination in this case was lodged on 20 July 2018, prior to 12 August 2018. Therefore, the applicant is not liable to pay a nomination training contribution charge.
For these reasons the requirements of s 140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Justin Meyer
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 2914

1 March 2022

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Immigration

Administrative Law

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