J.S. T-SHIRT PTY. LIMITED (Migration)

J.S. T-SHIRT PTY. LIMITED (Migration) [2024] AATA 3894 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J.S. T-SHIRT PTY. LIMITED
REPRESENTATIVE:  Ms Rong Zhang (MARN: 0426182)
CASE NUMBER:  2119646
HOME AFFAIRS REFERENCE(S):          BCC2021/2043861
MEMBER:Sheridan Aster
DATE:19 September 2024
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 19 September 2024 at 12:14pm
CATCHWORDS
MIGRATION – nomination – no adverse information – position associated with the nominated occupation is genuine – labour market testing was undertaken in the specified period – no less favourable terms and condition of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 December 2021 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).
J.S. T-Shirt Pty Ltd supplies uniforms, sportswear, and corporate merchandise. The company applied for approval to nominate Kaicheng Shen to work on the occupation of Accountant (General) on 27 October 2021. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a), which requires the position associated with the occupation to be genuine.
Sales and Finance Manager, Liwen Li (Raymon), appeared before the Tribunal on 11 September 2024 to give evidence and present arguments on behalf of J.S. T-Shirt Pty Ltd. The Tribunal also received oral evidence from the nominee, Mr Shen, tax agent Jeffrey Todd and customer Darren Sweeney.
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 Departmental file, the Tribunal has determined that:
·J.S. T-Shirt is nominating an occupation under s 140GB(1)(b) in relation to an applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination was made using the approved form and correct fee: regs 2.73(3), (4) and (5);
·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);
·The nomination is in the Medium term stream and the occupation is a medium and long term strategic skills specified occupation: reg 2.73(6);
·The applicant has identified the nominee in the nomination: reg 2.73(8);
·The nomination includes the name of the occupation and the corresponding 6 digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, and any other specified information: reg 2.73(9);
·The nomination includes written certification that the person has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);
·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);
·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and that the position is in the person’s or an associated entity’s business: reg 2.73(14).
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no adverse information on the Departmental file and the Tribunal infers that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
The requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
J.S. T-Shirt Pty Ltd was approved as a standard business sponsor on 18 November 2021, valid until 18 November 2026. The requirement of reg 2.72(5) is 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 Departmental file contains no record of an outstanding debt and the Tribunal infers there is none. The requirement of reg 2.72(5A) is 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 this case, the nominee does not hold a Subclass 457 or 482 visa. The requirements of reg 2.72(6) and reg 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. In this case, Migration Instrument LIN 19/048 applies. The occupation must also apply to the nominee in accordance with the instrument.
Accountant (General) and its 6-digit code are specified in LIN 19/048. The instrument specifies three circumstances in which the occupation will not apply to the nominee:
·The position is a clerical, bookkeeper or accounting clerk position.
·The position is in a business that has an annual turnover of less than AUD1,000,000.
·The position is in a business that has fewer than five employees.
At the hearing, Mr Li gave evidence that J.S. T-Shirt was established in 1996. The company originally manufactured all its textile products in Australia until 2003 or 2004. Now the company imports more than 50 per cent of garments and does the embroidery locally. The company has joint ventures with offshore manufacturers in Bangladesh and China. The company directly employees between 10 to 12 people.
Mr Li gave evidence that the primary role of the accountant is to identify cost savings and profit opportunities. Mr Shen does this by analysing supply costs, monitoring exchange rates, and identifying new ventures. For example, the company recently modernised the embroidery machinery and the accountant managed the purchases and loans to fund the purchases. Mr Li also gave evidence that the company was considering acquiring a business in Melbourne to save on freight. Mr Shen analysed the company financial reports and prepared an acquisition proposal.
In addition to the tasks outlined about, Mr Shen gave evidence that he produces balance sheets and cash flow reports each month and profit and loss reports every two months. He is planning to move the company from MYOB to Zero accounting software. He manages accounts receivable and payable, maximises tax benefits while remaining compliant, including assessing GST liabilities. Mr Shen says he works with Western Union to purchase and store US dollars when the exchange rate is favourable. He is responsible for managing one member of staff, who is a bookkeeper. She is responsible for data entry and payroll.
The Tribunal is satisfied that the position is not clerical, and it is not that of a bookkeeper or accounting clerk.
Business Activity Statements (BAS) lodged with the Australian Taxation Office show that the company reported $2.175 million in sales for the 2023 – 2024 financial year. The business employs greater than five employees.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) outlines that Accountants provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance. It goes on to say that most occupations in the accountants unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
In addition to the description of the role previously outlined, Mr Todd and Mr Sweeney were able to provide some information about the accountant position.
Mr Todd gave evidence that he is the external accountant and tax agent for J.S. T-Shirt. He is engaged to prepare and lodge the company tax return. Mr Todd said that prior to the company engaging an internal accountant, he would prepare profit and loss statements, budgets, lodge BAS and manage imports. He gave evidence that he is no longer involved in the internal accounting.
Mr Sweeney gave evidence that he was previously employed within sales at J.S. T-Shirt, but now he is a client. Mr Sweeney works in corporate marketing and purchases branded materials from time to time. He introduced the company to the business they are looking to acquire in Melbourne.
Mr Sweeney gave evidence that Mr Shen has specialist knowledge of a niche industry. Applying his accounting knowledge has improved the internal processes to reduce wastage. Profit margins are tight in the embroidery industry. Due to the cost of freight, the company does not presently do business in Brisbane and Melbourne. That is why Mr Li is considering the acquisition. Mr Shen’s skills will be invaluable to determine the customer base and undertake risk analysis. Mr Sweeney also expressed the opinion that Mr Shen’s ability to speak with the factories in China was a huge advantage.
Mr Shen holds a relevant qualification, having graduated from Deakin with a degree in Finance and Accounting. The Tribunal is satisfied that J.S T-Shirt requires a full-time accountant, and notes that Mr Shen has been working in the role for almost three years.
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 relevant migration instrument. 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 applicant supplied a contract of employment between J.S. T-Shirt and Kaicheng Shen, signed on 26 July 2024. The contract established that the nominee will be employed directly by the applicant.
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. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate for the occupation has been determined by the applicant by reference to IMMI 18/033 reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The annual earnings for the position are $74,800. For the purposes of paragraphs 2.72(15)(b) and 2.79(1A)(b) of the Regulations, the specified amount of annual earnings is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
Following the hearing, the applicant provided a report on how the annual market salary was determined. Mr Li gave evidence that there is no Australian worker performing equivalent work to the nominee. Professional accountants are not generally covered by an award. Therefore, the annual market salary rate was determined by reviewing advertisements for similar positions and consideration of industry salary survey information.
Having reviewed the material submitted by the applicant, the Tribunal is satisfied that $74,800 was determined to be the annual market salary rate in accordance with the instrument. The requirements of reg 2.72(15)(c) are met.
The annual market salary rate for the occupation is not less tan the TSMIT ($53,900). The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation or the TSMIT. The annual market salary rate is consistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of regs 2.75(15)(d), (e), (f), and (g) 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: reg 2.72(18)(b). There is no information before the Tribunal to indicate that the employment conditions would be less favourable than those that would apply to an Australian worker, or that the business has engaged in discriminatory recruitment practices.
For these reasons the requirements of reg 2.72(18)(a) and (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 it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(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 the instrument made under s 140GBA(6A) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5);
·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.
In this case, neither the major disaster nor the skill and occupational exemptions apply.
Under the China-Australia Free Trade Agreement (ChAFTA) it would be inconsistent with Australia’s international trade obligations to require labour market testing for intra-corporate transferee, independent executive of China and contractual service suppliers. The applicant does not fall within the definitions provided in the ChAFTA, therefore it would not be inconsistent with Australia’s international trade obligations to require labour market testing in the current matter.
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.

The relevant period for conducting labour market testing in the current application was the period four months ending on the day on which the nomination form in relation to the application is lodged.
The applicant supplied a tax invoice issued by seek.com for an advertisement taken out for an accountant in September 2021 and a copy of the advertisement. An extract from jobactive showing an entry made by JS TSHIRT or the position of an accountant on 29 September 2021. An advertisement on indeed.com for an accountant at the business, dated 30 September 2021.
The applicant supplied the Tribunal with the resumes for other applicants. Mr Shen was selected because he had relevant experience, qualifications and speaks Chinese.
Mr Li confirmed at the hearing that here were no redundancies or retrenchments from relevant occupations in the previous four months.
Having reviewed the material, the Tribunal is satisfied that labour market testing was undertaken in the specified period and in the manner set out in the instrument. The Tribunal finds that there were no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position.
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The nomination training contribution charge is payable to the Department at the time of lodgement. No evidence was provided to the Tribunal by the Department to indicate that there is an outstanding payment. The Tribunal infers that any relevant charge was paid to the Department at that time. 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.
Sheridan Aster
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)…

[2024] AATA 3894

19 September 2024

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