Japanese Gourmet Ken Pty Ltd (ATF) K&K Tanabe Family Trust (Migration)

Japanese Gourmet Ken Pty Ltd (ATF) K&K Tanabe Family Trust (Migration) [2023] AATA 2175 (13 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Japanese Gourmet Ken Pty Ltd (ATF) K&K Tanabe Family Trust
REPRESENTATIVE:  Mr Hideaki Takahata (MARN: 0325064)
CASE NUMBER:  1919895
HOME AFFAIRS REFERENCE(S):          BCC2019/3111816
MEMBER:Sheridan Aster
DATE:13 June 2023
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 13 June 2023 at 3:50pm
CATCHWORDS
MIGRATION – nomination – Short-term stream – Cook – nomination was accompanied by any applicable nomination training contribution charge – standard business sponsor– no adverse information – labour market testing requirements in s 140GBA are not applicable – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB, 360
Migration Regulations 1994, rr 1.13, 2.57, 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 2 July 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).
Japanese Gourmet Ken Pty Ltd (the applicant) applied for approval to nominate Marco Tondas to work as a Cook on 20 June 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the labour market testing requirements set out in s 140GBA of the Act.
Ms Kazumi Tanabe appeared before the Tribunal on 9 May 2023 to give evidence and present arguments on behalf of Japanese Gourmet Ken Pty Ltd. The Tribunal also received oral evidence from the nominee, Mr Tondas. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages and an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review.
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 is satisfied that:
·Japanese Gourmet Ken is nominating an occupation under s 140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination was made using the approved form and 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 Short-term stream and the occupation is a short term specified skilled 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 locations 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;
·The nomination includes written certification that the applicant 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 saved on the Departmental file and the Tribunal infers that this is because there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
The Tribunal finds that 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.
The applicant supplied the Tribunal with a notification of approval as a standard business sponsor issued by the Department, valid from 22 January 2022 to 22 January 2027. The Tribunal finds that 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 nomination training contribution charge or late payment penalty. The Tribunal infers that the applicant has no outstanding debt under s 140ZO.
The Tribunal finds that 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 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).
At the time of the nomination application, Mr Tondas held a Subclass 457 visa, which ceased on 22 June 2019.
The nomination application listed Yaeko Tondas as the secondary applicant. The Tribunal finds that the applicant listed each person granted a Subclass 457 visa as a family member of the nominee. The requirements of reg 2.72(6) are met.
There is no record on the Departmental file that the Minister requested evidence that the nominee satisfied the language test requirements. As such the remaining requirements of 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 was made. In this case, IMMI 19/048. The occupation must also apply to the nominee in accordance with the instrument.
Cook is an occupation specified in IMMI 19/048. It is subject to two conditions: the position must not be involved in mass production in a factory setting or within a limited-service restaurant.
The applicant runs a restaurant called Japanese Gourmet Kenji. The restaurant offers take away, dine in and BYO alcohol. It is open for lunch and dinner from Tuesday to Saturday. A review of the menu shows that the restaurant offers a range of dishes. The Tribunal is satisfied that the position is not based in a factory setting or within a limited-service restaurant. The occupation applies to the nominee in accordance with the 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.
As outlined above, Japanese Gourmet Kenji is a restaurant serving lunch and dinner five days a week. Ms Tanabe gave evidence that the restaurant provides dine in and take-away. At the date of the hearing, the business employed four people in the kitchen. Ms Tanabe’s husband also works full-time in the restaurant doing a range of jobs. Ms Tanabe does the bookkeeping.
Ms Tanabe gave evidence that Mr Tondas is very important to the business. He works in the kitchen and produces the sushi. He is responsible for stock control, hygiene and managing the other staff in the kitchen. Mr Tondas reports to the Director. Mr Tondas started with the company on a part-time basis when he was on a student visa. He went to cookery school full time and then returned to the business as a fulltime cook.
Mr Tondas gave evidence that he works as a cook at Kenji Japanese from Tuesday to Saturday. He manages the other employees in the kitchen and reports to Mr Tanabe. Mr Tondas described his tasks on an average day. He explained that he would start by preparing for opening, make sauces, preparing fish, cut chicken, some cleaning. He would brief the staff then do ordering. There are some menu items cooked to order in addition to the pre-prepared sushi.
The Australian and New Zealand Standard Classification of Occupations outlines that cooks ‘prepare, season and cook food in dining and catering establishments.’ The Tribunal is satisfied that a business of the size and nature of Japanese Gourmet Ken would require a full-time employee to perform the tasks of a cook. The Tribunal finds that 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 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(12) must be met.
The occupation of cook is not an exempt occupation specified in IMMI 18/035. The applicant supplied the Tribunal with a contract of employment between Japanese Gourmet Ken and Marco Tondas dated 7 July 2019. A signed amendment to the contract, dated 16 May 2023, was also supplied to the Tribunal.
For these reasons the requirements of reg 2.72(12) 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, which is currently $250,000. 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 (TSMIT) (currently $53,900), 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).
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.
At the hearing, Ms Tanabe gave evidence that there are just two people undertaking fulltime work in the kitchen: Mr Tondas and Mr Tanabe. Mr Tanabe is a company director and does not take a salary from the business. The remaining kitchen staff are casual employees and have no responsibility for managing other employees.
Clause 9 of IMMI 18/033 sets out the method for determining the annual market salary rate where there is not an Australian worker performing equivalent work. It stipulates that where there is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments
The Restaurant Industry Award 2020 would apply to the business and its employees. Clause 20.1 provides for an annualised wage arrangement. An employer and a full-time employee may enter into a written agreement for the employee to be paid an annualised wage of an amount that is at least 25% more than the minimum wages prescribed in clause 18 multiplied by 52 for the work being performed in satisfaction. For example, a Level 5 employee is entitled to a minimum weekly rate of $999.9, therefore they would be entitled to an annualised salary of $64,993,50. A Level 4 would get $61,158.50 and a Level 3 $58,084.
At the hearing, the Tribunal discussed its initial view that as a trade qualified cook, it would be difficult to see how the applicant would be classified as anything lower than a Level 3 under the award. Furthermore, his management responsibilities suggest that he would sit at the higher end of the classification structure.
The employment contract dated 7 July 2019 provided for an annual salary of $55,000. In an email of 2 May 2023, the applicant advised that the rate had increased by $50 per week. Three recent payslips provided to the Tribunal prior to the hearing reported a fortnightly income of $2,215.40 ($57,600.40 per annum). The Tribunal expressed a concern that the application would not meet the requirement of reg 2.72(15) on the available evidence.
Following the hearing, the applicant provided a signed amendment to the employment contract, dated 16 May 2023. The amendment increased the annual salary to $67,000.
The Tribunal is satisfied that the market salary rate has been set by reference to instrument IMMI 18/03, using the relevant award. The rate, excluding any non-monetary benefits, for the occupation is not less than the TMSIT. In light of the updated salary, the Tribunal is satisfied that the nominee’s annual earnings will not be less than the rate for the occupation or the TSMIT. There is no information before the Tribunal that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation. The Tribunal infers that this is because there is no relevant information know to immigration.
For these reasons the requirements of regs 2.72(15)(c), (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.
The employment contract signed by the applicant and the nominee provides terms and conditions consistent with the National Employment Standards in the Fair Work Act 2009 (Cth). Superannuation entitlements are in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). The Tribunal is satisfied that the employment conditions that will apply to the nominee are no less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location.
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 operating a business in Australia and reg 2.72(18)(b) applies.
At the hearing, Mr Tondas gave evidence that his wife had originally applied for a job at the restaurant. She was advised that the company wanted a male worker, so she recommended Mr Tondas for the position. Mr Tondas suggested that the business prefers to employ male employees to work in the kitchen because the directors feel they are more suited to the environment.
On 24 May 2023, the Tribunal wrote to the applicant and invited it to comment on or respond to the above information. The invitation advised that reg 2.72(18)(b) stipulates that if the applicant is lawfully operating a business in Australia, they must not have engaged in discriminatory recruitment practices. The information outlined above is relevant to the review because it suggests that Japanese Gourmet Ken may have engaged in discriminatory recruitment practices.
The letter went on to advise that the Fair Work Act 2009 (Cth) outlines that an employer must not take adverse action against an employee or prospective employee because of the person’s sex (s 351(1)). Refusing to hire a prospective employee because of their sex would constitute adverse action (which is defined in s 342).

In addition, under the Sex Discrimination Act 1984 (Cth) it is unlawful to discriminate against a person on the ground of the person’s sex in determining who should be offered employment (s 14(1)).
Finally, the letter advised that if the Tribunal were to rely on the information provided and determine that Japanese Gourmet Ken has engaged in discriminatory recruitment practices, then it must find that the application does not meet the requirement of reg 2.72(18)(b). If a criterion for the approval of the nomination is not satisfied, then the decision under review must be affirmed.
On 5 June 2023, the applicant responded to the Tribunal’s invitation. In a letter, Ms Tanabe advised that the business does not treat job applicants or employees differently based on their gender. She hypothesised that there was some miscommunication between Mr Tondas and his wife or Mr Tondas and the Tribunal. Nevertheless, Ms Tanabe conceded that she and her husband learned Australian values and had grown accustomed to them since they migrated to Australia from Japan in 2000. She expressed the opinion that Japan was unfortunately behind in terms of gender equality.
To ensure non-discriminatory workplace practices, Ms Tanabe advised that Mr Tanabe (who is responsible for recruitment activities) would attend an Equal Employment Opportunity Training for Managers course. Further, the business introduced a new business policy concerning workplace discrimination and harassment. A copy of the policy and a receipt for payment of the course were annexed to the letter. On 13 June 2023, the applicant supplied a certificate of completion issued to Mr Tanabe for completion of the course on 11 June 2023.
The applicant has demonstrated a commitment to non-discriminatory recruitment practices going forward. The Tribunal considers that there is insufficient evidence to conclude that the applicant engaged in discriminatory recruitment practices in the past and accepts that there may have been miscommunication between Mr Tanabe, Mr Tondas and the Tribunal, particularly through the use of interpreters.
For these reasons the requirements of regs 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).
Immigration Instrument LIN 18/083 applied at the time of the nomination application. The instrument stipulates that the General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organisation is determined as an international trade obligation of Australia for the purposes of s140GBA(1)(c).
Departmental policy, as it applied at the date of the application, outlines the practical effect of the instrument is that labour market testing is not required if the nominee is a citizen of a World Trade Organisation (WTO) member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years before the nomination was lodged.
Mr Tondas is a citizen of Indonesia, which has been a WTO member since 1995. He has been employed by Japanese Gourmet Ken since 22 June 2015. In the circumstances, the application of labour market testing would be inconsistent with an international trade obligation of Australia.
For these reasons, the labour market testing requirements in s 140GBA are not applicable.
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 Departmental file indicates that the applicant paid all applicable charges. Therefore, the requirement of s 140GB(2)(aa) is 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)…

[2023] AATA 2175

13 June 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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