July & Co Pty Ltd (Migration)

July & Co Pty Ltd (Migration) [2024] AATA 3702 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  July & Co Pty Ltd
REPRESENTATIVE:  Ms Ming-Hao Chen
CASE NUMBER:  2207871
HOME AFFAIRS REFERENCE(S):          BCC2021/78985
MEMBER:Susan Hoffman
DATE:24 September 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 24 September 2024 at 10:18am
CATCHWORDS
MIGRATION – application for approval of nomination of position – general accountant – sufficient alignment of duties to be performed by nominee and tasks of nominated occupation – some tasks associated with general accountant and some with management accountant – turnover and growth of business and need for more than one accountant – labour market testing – hearing combined with review of separate nomination review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), 2.72(2), (10)(a), 2.73
CASE
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 12 May 2022 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 7 January 2022. 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) because the delegate was not satisfied that the duties to be performed by the nominee aligned sufficiently with the tasks of the nominated occupation.
Mr Richard Li, director of July & Co Pty Ltd (July), appeared on behalf of the applicant company before the Tribunal on 12 September 2024 to give evidence and present arguments in regard to this case and also for case number 2213585, which concerns a separate nomination application.
The applicant provided submissions before and after the hearings relevant to cases.
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 had regard to the material in the departmental file, the Tribunal is satisfied as to the following:
·The applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination was made using the approved form and fee as per reg 2.73(3), (4) and (5);
·An applicant is required to pay a nomination training contribution charge at the time the nomination application is lodged with the Department. As the Department has processed the application, the Tribunal is satisfied that the nomination was accompanied by the applicable nomination training contribution charge: reg 2.73(5A);
·The nomination was in the Medium-term stream. The nominated occupation of Accountant (ANZSCO 221111) was listed in the Medium and Long-term Skilled Occupation List in the relevant instrument, LIN 19/048, as per reg 2.73(6);
·The applicant identified the nominee as Ms Ping-Ying Lee in the nomination application form; reg 2.73(8);
·The nomination included 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 as well another specified information, as per 2.73(9);
·The nomination includes written certification to the effect that the applicant had not engaged in conduct that contravenes s 245AR(1) of the Act; reg 2.73(12);
·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 business.
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.
As noted earlier, the Tribunal has also conducted a review for a separate nomination application (case number 2213585). It will soon finalise its decision in relation to that review. In its Statement regarding that decision, the Tribunal identified what it considered to be adverse information directly relevant to that nomination application. It also decided that it was reasonable to disregard the adverse information. The Tribunal’s reasoning is set out in detail in its decision record for case number 2213585.
Having decided to disregard the adverse information noted for case number 2213585, the Tribunal is satisfied that it is reasonable to disregard the adverse information in relation to this review also.
For these reasons 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 submitted a letter from the Department dated 20 August 2020 which stated that the applicant is a standard business sponsor from then to 20 August 2025.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no evidence before the Tribunal that the applicant has an outstanding debt under s 140ZO.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
Based on information provided by the applicant, the nominee is not the holder of a Subclass 457 or Subclass 482 visa. Therefore, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation, and the position must be genuine and fulltime.
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.
The Tribunal finds that the nominated occupation of Accountant (General) (ANZSCO 221111) is listed in the Medium and Long-term Skilled Occupation List in the relevant instrument, LIN 19/048.
Caveats do apply to this occupation as follows: the position is a clerical, bookkeeping or accounting clerk position: the position is in a business that has an annual turnover of less than AUD1,000,000; and (a) the position is in a business that has fewer than 5 employees; and (b) if the nominee is to be transferred to fill the position—the transfer is not an intra‑corporate transfer to which an international trade obligation applies.
The applicant submitted that the caveats do not apply to the nominated position as it is not a clerical, bookkeeping or accounting clerk position; the business employs more than five employees; and the annual turnover exceeds one million dollars. These submissions are considered below.
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 Tribunal considered the evidence as to what tasks the nominee does undertake.
The ANZSCO tasks for the unit group 2211 Accountants include the following:
- assisting in formulating budgetary and accounting policies
- preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
- conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
- examining operating costs and organisations' income and expenditure
- providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
- providing financial and taxation advice on business structures, plans and operations
- preparing taxation returns for individuals and organisations
- liaising with financial institutions and brokers to establish funds management arrangements
- introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
- maintaining internal control systems
- may appraise cash flow and financial risk of capital investment projects
Three types of accountant are identified, being Accountant (General) (221111), Management Accountant (221112) and Taxation Accountant (22113).
According to ANZSCO, the Accountant (General) provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements. Registration or licensing may be required for certain services such as auditing.
The Management Accountant provides services relating to performance-based financial reporting, asset valuation, budgetary systems, cost management, pricing, forecasting and the strategic governance of organisations. They provide advice on financial planning, risk management, carbon sequestration projects and carbon pricing and provides management with reports to assist in decision-making. They may provide insight into cost performance and support the implementation of benchmarking and quality improvement initiatives. Registration or licensing may be required.
The applicant provided the Department with a position description for the nominated position, as follows:
As an Accountant, you will assist the Head of Finance across all aspects of Finance.
Your main responsibilities will include:
- Compiling monthly management accounts for the Board across the Group
- Performing variance analysis against budget, including expenditure analysis
- Performing financial and cash flow forecasting
- Preparing financial statements in accordance with statutory and shareholder
- requirements
- Reconciling sales transactions across various revenue streams (domestic and
- international)
- Performing balance sheet reconciliations
- Creating process flows and documenting processes
- Maintaining internal control systems across the Group
- Working with overseas Trading Partners on budgets and financial reporting for China
- operations
- Assisting with implementing new software and systems to facilitate growth
- Performing other ad-hoc finance tasks as required
Some of the duties of the accountant are more aligned to tasks undertaken by an Accountant (General) and others are more aligned with tasks undertaken by a Management Accountant, as described by ANZSCO.
For example, the preparation of financial statements in accordance with statutory and shareholder requirements and maintaining internal control systems fall under the duties of an Accountant (General) whereas tasks such as performing variance analyses against budgets are tasks associated with a Management Accountant.
The applicant submitted the selection criteria for the position, as follows:
About you:
- Hold a Bachelor of Commerce or equivalent
- Can speak and read Mandarin Chinese at an intermediate fluency or above
- Retail experience highly desirable
- Experience using Xero accounting software highly desirable
- 1-2 years’ experience working in an Accounting role
- Ability to communicate clearly and concisely
- Ability to demonstrate initiative, highly motivated & self-driven
- Confident working both in a team and independently
- Proficient in the Microsoft Suite
A pre-hearing submission stated that the nominee had filled the position since 2020, which is an essential position because of the significant growth of the business.
The Accountant position sits within the business’ internal finance team and reports directly to the Head of Finance. The nominee is qualified as an accountant and holds a bachelor’s degree. She has (at the time the submission was made in June 2024) 6 years and 9 months of relevant experience. Based on pay records, the nominee is currently employed on a full-time basis.
The annual turnover was over $2 million for year ended 30 June 2021. The business launched in the US in July 2021 and the annual turnover for year ended 30 June 2022 was over $17 million. For year ended 30 June 2023, the annual turnover was $49 million.
It was contended that the applicant has recently become the official luggage supplier of the Australian Olympic Team for the 2024 Olympic games and the 2026 Winter Olympic games.
The applicant opened its first retail store in Melbourne in August 2019. It now has eights stores across Australia, one in the UK, six in Singapore, four in Malaysia, 3 in Hong Kong and two stores in China. In 2022, the business employed 18 staff. As at June 2024, it has 79 employees.
With the growth of the business, there is a Finance Manager (Head of Finance) and two accountants who report to the Finance Manager. The nominee is one of those accountants.
The Tribunal is satisfied that the duties identified by the applicant correlate with the tasks for the unit group of accountants. Some of her duties are a better fit with a Management Accountant rather than an Accountant (General).
Given the turnover of the business, its growth and that it operates from different locations, the Tribunal is satisfied that there is a need for more than one accountant to be employed by the business, and that was the case when the nomination application was made. The Tribunal is satisfied that given her specific duties, it is reasonable in relation to the nominee, for the type of accountant to be identified as an Accountant (General).
For these reasons the requirements of reg 2.72(8) are met and 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 LIN 19/012.
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 submitted an employment contract between July and the nominee, dated 22 December 2021, according to which she was employed on full-time basis for a salary of $60,000 a year plus superannuation. Standard employment conditions such as four weeks annual leave and other forms of leave were set out in the contract.
A variation of the contract was also submitted, according to which the nominee’s salary had increased to $65,000 a year plus superannuation. According to a payroll summary, she was paid $65,481 during the 2023-24 financial year.
The Tribunal is satisfied that the nominee is and will be engaged as an employee under a written contract of employment by the applicant and that the applicant will give a copy of the contract, signed by the employee and the nominee, to the Minister.
For these reasons the requirements of reg 2.72(11) 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’. The amount of annual earnings specified in IMMI 18/033 is $250,000. As the annual salary as per the contract mentioned earlier is less than $250,000, reg 2.72(15) applies. It requires that:
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 (TSMIT) specified in the instrument IMMI 18/033, 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 time the nomination was lodged – which was 7 January 2022 – the TSMIT was $53,900. On 1 July 2023, the TSMIT increased from $53,900 to $70,000.
There is no Australian citizen or permanent resident performing equivalent work on a full-time basis in the same workplace at the same location as the nominee. There is a second accountant, Ms Terese Melissa Yap, who is also on a temporary visa. The applicant said that she was on the same salary as the nominee.
It was submitted that at the time of application, the other person within the finance team was the Finance Manager who held a managerial role and was more senior than the nominee. This meant there was not an Australian employee or other person doing the same work as the nominee.
The applicant made submissions as to the market rate for the occupation. According to payscale.com, the average salary for an accountant in Melbourne as at 6 July 2024 was $63,917 and the median was $64,000. The base salary fell within the range $50,000 to $86,000. An advertisement dated 6 July 2024 which was placed on seek.com.au for an accountant based in Melbourne offered a salary of $60,000 to $80,000 inclusive of super. That position required a minimum of 1 to 2 years relevant experience.
The Tribunal is satisfied based on the evidence before it, specifically the employment contract, that the nominee’s annual earnings will be less than the amount specified in the relevant instrument of r.2.72(15)(b) ($250,000 as per IMMI 18/033), the requirements of 2.72(15) must be met.
The Tribunal is satisfied that the applicant has shown how they determined the annual market salary. This was done by reviewing publicly available information for equivalent positions. For these reasons the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the annual salary of $60,000 a year (excluding superannuation) is higher than the TSMIT which applied when the nomination application was made and is in line with the annualised market salary rate (AMSR) excluding any non-monetary benefits. For these reasons the requirements of reg 2.72(15)(d) are met.
In light of the foregoing, the Tribunal is satisfied that a salary of $60,000 was consistent with, and not less than, the rate for the occupation at the time the nomination application was lodged. The Tribunal is also satisfied that the position is a full time position. For these reasons, the requirements of reg 2.72(15)(e) are met.
As the Tribunal has found that the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the relevant TSMIT, the Tribunal is satisfied that the requirements of reg 2.72(15)(f) are met.
There was no evidence before the Tribunal to indicate that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. For these reasons the requirements of reg 2.72(15(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.
There was no evidence before the Tribunal suggesting that Immigration knows of information indicating that the employment conditions (other than those 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.
For these reasons the requirements of reg 2.72(18)(a) are met.
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 was no evidence before the Tribunal to suggest that the applicant was doing other than lawfully operating a business in Australia, in which case reg 2.72(18)(b) does apply.
There was no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or 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 ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The 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 required evidence includes details of advertising for the position or for similar positions, and the fees and expenses of that advertising.
Other relevant information may be included, such as the sponsor’s participation in, for example, job and career expos; details of other fees and expenses incurred associated with recruitments attempts; recent labour market trend research; and expressions of government support. The nomination is not to be treated less favourably if none of the optional evidence is provided.
The Tribunal also considered whether there would be any inconsistency between LMT and international obligations or whether the nominated occupation is covered by either the major disaster exemption or the “skill and occupational” exemptions, as specified in the relevant instrument of the Register of Instruments: Business Visas – s. 140GBA(1)(c), 140GBB and 140GBC. If any of these were identified, then the LMT condition would not apply to the applicant.
Based on the evidence before it, the Tribunal is satisfied that there are no such exemptions or inconsistency relevant to this matter, in which case the LMT condition does apply and the applicant must satisfy the LMT requirements referred to above.
The legislative instrument sets out the following requirements regarding advertising:
· There must be at least two advertisements commissioned by the sponsor which appear on a recruitment website with national reach in Australia, in print media with national reach in Australia or on radio with national reach in Australia. The advertisements must for the position must include the position title, skills and experience required, the sponsor’s name or that of the agency being used, and the salary for the position, if the earnings were less than $96,400. The advertisements must run for at least four weeks.
· In addition, applications or expressions of interest for the advertised position must be accepted for at least four weeks from when the advertisement was first published in print, radio or via website address.
The Tribunal has reviewed information provided by the applicant at the time the application nomination was made and in their submissions to the Tribunal. Together, they included the following information:
·     The applicant advised that it advertised on JobActive, Jora Jobs and Indeed Jobs with the advertisements posted on 15 September 2021.
·     There were no responses to the advertisements placed with JobActive and Jora Jobs.
·     There were 13 responses to the advertisement placed with Indeed. None of the 13 were interviewed, as 10 of them had skiils in bookkeeping, as accounts clerks or with accounts payable. None of the 10 had skills suitable for an accounting role.
·     Of the three candidates who had some experience in accounting roles, they did not have the necessary language skills and would not have been able to liaise with Chinese suppliers or with Chinese operations in Chinese.
According to a webpage from JobActive, the advertisement was created and opened on 16 September 2021 and expired on 18 October 2021. It read as follows:
As an Accountant, you will assist the Head of Finance across all aspects of Finance.
Your main responsibilities will include:
·Compiling monthly management accounts for the Board across the Group
·Performing variance analysis against budget, including expenditure analysis
·Preparing budgets and cash flow forecasting
·Preparing financial statements in accordance with statutory and shareholder requirements
·Performing balance sheet reconciliations
·Creating process flows and documenting processes
·Maintaining internal control systems across the Group
·Working with overseas Trading Partners on budgets and financial reporting for China operations
·Assisting with implementing new software and systems to facilitate growth
·Performing other ad-hoc finance tasks as required
About you:
·Hold a Bachelor of Commerce or equivalent
·Can speak and read Mandarin Chinese at an intermediate fluency or above
·Retail and eCommerce experience highly desirable
·Experience using Xero accounting software highly desirable
·1-2 years’ experience working in an Accounting role
·Ability to communicate clearly and concisely
·Ability to demonstrate initiative, highly motivated & self-driven
·Confident working both in a team and independently
·Proficient in the Microsoft Suite
Salary range: $55k - $60k plus Superannuation
The applicant provided copies of the advertisements that appeared on the Indeed and Jora websites, which were identical to that placed with JobActive.
The application for the nomination to be approved was placed on 26 November 2021, which was within four months of the three advertisements placed on 15 and 16 September 2021.
The advertisements all stated the role was for an Accountant to be employed; that the employer was July; and that the salary was within the range $55,000 to $60,000. The advertisements set out the skills and experience required for the roles.
There was no evidence before the Tribunal about any Australian citizen or permanent resident redundancies or retrenchments from the relevant occupation in the previous four months. This was confirmed in a written submission dated 6 June 2024 from, July’s director, Mr Richard Li. He stated that there had been no redundancies or retrenchments in the previous 12 months. He also wrote that the nominee has been employed in the nominated position for over four years.
Given the foregoing, the Tribunal is satisfied that the LMT was undertaken in the specified period, as per s 140GBA(3)(a) and (4) and was undertaken in the manner set out under LIN 18/036: s 140GBA(3)(aa) and (5).
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 applicant lodged the application on 7 January 2022 and was therefore liable to pay the nomination training contribution charge. This charge is generally paid by applicants at the time their applications are lodged. There was no evidence before the Tribunal that this applicant has not paid the nomination training contribution charge.
For these reasons the requirements of s 140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Susan Hoffman
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 3702

24 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice