Honey Producers of Australia Pty Ltd (Migration)

[2023] AATA 2356

Honey Producers of Australia Pty Ltd (Migration) [2023] AATA 2356 (23 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Honey Producers of Australia Pty Ltd

CASE NUMBER:  1928524

HOME AFFAIRS REFERENCE(S):          BCC2019/4719007

MEMBER:George Hallwood

DATE:23 June 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 23 June 2023 at 12:38pm

CATCHWORDS
MIGRATION–nomination – Short-term stream – no adverse information– applicant is the standard business sponsor –position associated with the nominated occupation is genuine – nomination training contribution was paid by the applicant – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 September 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).

2. The applicant applied for approval on 20 September 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy subparagraph 140GBA(3)(aa) of the Act because they were not satisfied that labour market testing had complied with the specifications in the relevant legislative instrument: LIN 18/036.

4. Mr Kenneth Olley and Mrs Shirley Olley both appeared before the Tribunal on behalf of the applicant on 21 June 2023 to give evidence and present arguments. Due to illness Mrs Olley was sworn in and, as a Director of the applicant, answered most of the questions of the applicant instead of Mr Olley who had originally intended to appear on behalf of the applicant. As this was a combined hearing with that of the related visa application the Tribunal also received oral evidence from Mr Raquel Rizalde the primary visa applicant (Case number 1932095) and also Mr Rizalde’s supervisor Mr Robert Glen Peadon.

5. The applicant was represented in relation to the review.

6. 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

1. 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

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

2. The Tribunal has considered the nomination application and accompanying documents and finds:

   ·     The person, Honey Producers of Australia Pty Ltd, is nominating an occupation, Apiarist, in relation to a holder of a Subclass 457, Mr Rizalde: reg 2.73(1);

   ·     The nomination dated 20 September 2019 was made using the approved form and fee as set out in IMMI 18/038: regs 2.73(3), (4) and (5);

   ·     The nomination dated 20 September 2019 was accompanied by the applicable nomination training contribution charge: reg 2.73(5A);

   ·     The nomination dated 20 September 2019 is in the Short-term stream as the occupation, Apiarist - 121311, is a short term specified skilled occupation in the instrument LIN 19/048: reg 2.73(6);

   ·     The applicant has identified the nominee, Mr Rizalde, in the nomination dated 20 September 2019: reg 2.73(8);

   ·     The nomination dated 20 September 2019 includes the name of the occupation, Apiarist, and the corresponding 6-digit code, 121311, the location/s at which the occupation will be carried out, Clifton Queensland, the proposed period of stay for a visa granted on the basis of the nomination, up to two years, the annual turnover for the nomination, and other specified information – the instrument LIN 19/048: reg 2.73(9);

   ·     The nomination dated 20 September 2019 includes written certification that the nominator has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);

   ·     The nomination dated 20 September 2019 includes written certification that the employment contract with the nominee will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);

   ·     The nomination dated 20 September 2019 includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO, Legislative Instrument or Labour Agreement; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO, Legislative Instrument or Labour Agreement; and, that the position is in the person’s or an associated entity’s business: reg 2.73(14).

3. For these reasons the requirements of reg 2.72(3) are met.

No adverse information known to Immigration

1. 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.

2. The nomination application states that there is no adverse information to declare about the applicant or a person associated with the applicant, including any information relating to the contravention of Australian laws, insolvency, sponsorship breaches and / or other circumstances which might reasonably be considered adverse information. At the hearing Mr Olley confirmed that this is still the case. There is nothing before the Tribunal to suggest otherwise.

3. For these reasons the requirements of reg 2.72(4) are met.

Nominator is a standard business sponsor

1. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

2. A letter from the Department of Home Affairs dated 21 September 2018 demonstrates that the nominator is a standard business sponsor until 21 September 2023. Therefore, the Tribunal finds the person making a nomination is a standard business sponsor.

3. For these reasons the requirements of reg 2.72(5) are met.

Payment of debt mentioned in s 140ZO

1. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

2. At the hearing Mr Olley told the Tribunal that the applicant has paid any amounts in s 140ZO of the Act. There is nothing before the Tribunal that suggests otherwise and so the Tribunal finds that the applicant has no outstanding debt under s 140ZO.

3. For these reasons the requirements of reg 2.72(5A) are met.

Requirements for existing Subclass 457 or Subclass 482 visa holders

1. 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).

2. Departmental documents show that the nominee was the holder of a Subclass 457 visa granted on 12 October 2017 and was valid until 12 October 2019. As this application was made on 20 September 2019, the nominee was the holder of a subclass 457 visa at the time of nomination and the Tribunal has considered the relevant criteria. There are no secondary applicants related to this application.

3. For these reasons the requirements of reg 2.72(6) are met.

4. Mrs Olley told the Tribunal that the Minister did not request evidence that the nominee satisfies the language test requirements. Therefore, no evidence has been provided in relation to the instrument IMMI 18/032.

5. For these reasons the requirements of reg 2.72(14) are met.

Specified occupation

1. 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, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

2. The nominated occupation, Apiarist, and its 6-digit code, 121311 correspond to an occupation and 6-digit code specified in the relevant instrument.

3. The nominated occupation is subject to the applicability condition 9 specified in the relevant instrument:

   9. The position predominantly involves responsibility for low-skilled tasks.

   Example 1: Rostering, maintaining records, reception duties and allocating duties to housekeepers, porters or doorpersons.

   Example 2: Fruit picking or packing or feeding of livestock or animals.

   Example 3: Truck driving.

4. A submission from the applicant dated 5 December 2022 sets out that the position related to the nominated occupation is a highly skilled role to which the nominee brings 22 years of experience and includes hands on practical beekeeping, examining thousands of frames of hives with different brood patterns placed in given apiary sites.

5. Mr Peadon told the Tribunal that the nominee, Mr Rizalde, is probably the most highly skilled Apiarist in Australia currently. Mr Olley explained a number of proprietary inventions that he has created that Mr Rizalde uses and has exposure to in applying his skills within the business.

6. Based on the evidence provided the Tribunal is satisfied that the applicability provision is not relevant in this matter.

7. For these reasons the requirements of reg 2.72(8) are met.

Position must be genuine and full-time

1. 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.

2. The business is a honey producer that has been operating since the 1950’s. In 2000 it became the first organic certified and largest honey producer in Queensland.

3. The applicant provided an organisation chart together with a detailed explanation of all of the positions associated with the organisation in December 2022.

4. The Tribunal is satisfied that the position associated with the nominated occupation is one of an Apiarist and is an essential role in honey production, therefore genuine.

5. An employment contract dated 8 December 2022 lists the position as Senior Apiarist and full time.

6. For these reasons the requirements of reg 2.72(10) are met.

Employment under contract

1. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.

2. The Tribunal finds as a matter of fact that the nominated occupation is not specified in the instrument IMMI 18/035.

3. As the applicant is not an overseas business sponsor, the nominee will be engaged as an employee under a written contract of employment by the applicant which has been signed on 8 December 2022 and provided.

4. For these reasons the requirements of reg 2.72(11) are met.

Annual earnings

1. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

   ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

   ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);

   ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

   ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

   ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

2. The instrument sets out that the specified amount is $250,000 per annum. The contract of employment sets out that the base salary is $60,216 per annum. 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.

3. The applicant has provided the salary information applicable to an Australian worker in the same workplace in the same location, performing equivalent work to the nominee in accordance with IMMI 18/033. Mrs Olley told the Tribunal that an Australian working for the business as an Apiarist currently earns $57,720. Mr Rizalde is not being paid less than an Australian equivalent. For these reasons the requirements of reg 2.72(15)(c) are met.

4. The Tribunal finds that the rate for the occupation of $57,720 excluding any non-monetary benefits, for the occupation is not less than the TSMIT of $53,900. For these reasons the requirements of reg 2.72(15)(d) are met.

5. As the nominee’s annual earnings in relation to the occupation are $60,216 the Tribunal is satisfied that this will not be less than the rate for the occupation (of $57,720). For these reasons the requirements of reg 2.72(15)(e) are met.

6. The nominee’s annual earnings of $60,216, excluding any non-monetary benefits, in relation to the occupation is not less than the TSMIT of $53,900. For these reasons the requirements of reg 2.72(15)(f) are met.

7. The applicant provided salary surveys from Payscale and from Indeed, Pastoral Award rates and payslip evidence from other livestock worker in the Clifton area all indicating the annual market salary rate is consistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

Employment conditions

1. 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.

2. 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) applies.

3. The employment contract dated 8 December 2022 contains a standard set of terms and conditions of employment appropriately referring to the Pastoral Award 2020, the National Employment Standards in the Fair Work Act 2009, and various other Australian employment laws. For this reason, the Tribunal is satisfied the nominee’s employment conditions (other than earnings) will be no less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.

4. Mrs Olley told the hearing that the applicant has not engaged in any discriminatory recruitment practices. There is nothing before the Tribunal to suggest otherwise. For these reasons the requirements of reg 2.72(18)(b) are met.

Labour Market Testing

1. 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 it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).

2. 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 LIN 18/036. In addition:

   ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;

   ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);

   ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and

   ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

1. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036.

2. The Tribunal has considered whether labour market testing applies in this matter. At the hearing Mrs Olley put to the Tribunal that two international trade obligations could apply in this matter which would exempt the applicant from labour market testing under the relevant instrument. After the hearing the applicant provided further information in relation to how these trade agreements may apply in this matter.

3. The nominee is a Philippine national.

4. The instrument LIN 21/075 relates to international trade obligations and includes two agreements that apply to Australia’s trade with the Philippine’s:

   ·     Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA); and

   ·     General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization (GATS).

5. AANZFTA identifies that the requirement to apply labour market testing still applies except for Intra-Corporate Transferees or Independent Executives (both defined in Annex 4, and Contractual Service Suppliers) which are only caught if there is a World Trade Organisation Agreement in place or another Free Trade Agreement in place which precludes labour market testing. There is no evidence before the Tribunal that the nominee is an Intra-Corporate Transferee or Independent Executive. Therefore, AANZFTA does not exempt the applicant from labour market testing.

6. Annex 1B of GATS and Australia’s Schedule of Specific Commitments Supplement 2 identifies that the requirement to apply labour market testing still applies except for Independent Executives and Specialists who satisfy the definition under (4)(d)(i) and (ii) because the agreement specifies that labour market testing does not apply for these people. Labour market testing is specifically retained for specialists who do not fall within (4)(d)(i) and (ii):

   (4)(d) [...] Labour market testing is not required for:

   (4)(d)(i)

   Natural persons who have specialised knowledge at an advanced level of a proprietary nature of the company’s operations and have been employed by the company for a period of not less than two years; and

   (4)(d)(ii)

   If the position in question is within the labour agreement at the time of application. A labour agreement is an agreement between the Australian Government, employers or industry organizations and unions for the entry of specialists from overseas.

7. Due to the differences in nature of (4)(d)(i) and (4)(d)(ii) where the former relates to applications by natural persons having advanced specialised knowledge and the latter relates to applications which fit within the separate category of labour agreements, the Tribunal is satisfied that the conjunction ‘and’ in this case is not inclusive and the meeting of one or the other requirement will exempt an applicant from the requirement to apply labour market testing.

8. The nominee, Mr Rizalde, is a natural person and has worked for the applicant for seven years.

9. Mr Olley told the Tribunal; and it is supported by the evidence of Mr Peadon and a letter from Mr Alan Chang of AVD Accountants dated 9 December 2022; that there are several inventions of this business that lead the world in terms of ‘hive loaders’, ‘bee medication’ and exporting of ‘nucleus hives’. The applicant is also a leader in organic honey production and transporting bees to minimise exposure to disease. Mr Chang’s letter states: “This is a truly iconic Australian business showcasing world leading inventions and Australian produce to the world via its exports. It also supports regional economies with its presence, expansion and R&D”. Mr Rizalde, as a key employee of the nominator, is exposed to and has a specialised knowledge of the company’s proprietary information and operations.

10. Mr and Mrs Olley described Mr Rizalde’s skill level as exceptional and Mr Peadon told the Tribunal that he had 40 years of experience in the industry but that Mr Rizalde (with 23 years of experience) was more highly skilled than him, and possibly the highest skilled Apiarist in Australia.

11. For the above reasons the Tribunal is satisfied that Mr Rizalde is a natural person who has specialised knowledge at an advanced level of a proprietary nature of the company’s operations and has been employed by the company for a period of not less than two years. Therefore, by reference to GATS, labour market testing is not required in this matter.

12. The Tribunal notes that the applicant did undertake labour market testing that may not have met timing and manner requirements of the instrument LIN 18/036. Having found that labour market testing is not required in this matter, that failure is of no matter to the outcome.

13. For the reasons outlined above the Tribunal is satisfied that the labour market testing requirements in s 140GBA of the Act do not apply in this case.

Nomination training contribution charge

1. 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).

2. At the hearing Mrs Olley told the Tribunal that the nomination training contribution was paid by the applicant. There is nothing before the Tribunal indicating that the charge has not been paid.

3. For these reasons the requirements of s 140GB(2)(aa) are met.

Concluding paragraph

1. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

George Hallwood
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.

1. The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

2. 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.

3. 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.

1. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

3. The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. …