K.P.D.O. Pty Ltd (Migration)

K.P.D.O. Pty Ltd (Migration) [2023] AATA 4275 (13 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  K.P.D.O. Pty Ltd
REPRESENTATIVE:  Miss Yi Kai Zhang (MARN: 9359571)
CASE NUMBER:  2103654
HOME AFFAIRS REFERENCE(S):          BCC2020/2345861
MEMBER:Antonio Dronjic
DATE:13 December 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 December 2023 at 12:40pm
CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – occupation of Accountant (General) – tasks of the position correspond to nominated occupation – genuine position – updated financial information – annual earnings – employment conditions no less favourable – China Free Trade agreement – decision under review set aside
LEGISLATION
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration Act 1958, ss 140, 245, 359
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.19, 5.42
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 March 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).
The applicant applied for approval on 22 September 2020. 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 D 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 majority of the tasks that the nominee is actually likely to perform align substantially with the tasks of the nominated occupation of Accountant (General) - 221111 as described in the ANZSCO. Accordingly, the delegate was not satisfied that the nominated occupation is genuine.
The applicant applied to the Tribunal on 23 March 2021, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 8 September 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of reg 2.72 of the Regulations.
On 2 October 2023, after being granted an extension of time, the applicant’s representative submitted documentary evidence. The list of documents is submitted to the Tribunal is attached to this decision record as Attachment A.
On 2 November 2023, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 7 December 2023.
On 30 November 2023, the Tribunal received documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment B.
Mr Michael Lipman, operations manager of the nominating business appeared before the Tribunal on 7 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Dong Wu, who is the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
In his evidence, Mr Lipman confirmed his authority to represent the business in these proceedings. He stated that he is and has been working as a part time Operations Manager since 2017.
K.P.D.O. Pty Ltd was registered on the 5th of April 2019. Before the establishment of K.P.D.O. Pty Ltd, the business had been trading under the name of K. Phelan Pty Ltd since its initial registration on 19 February 1999. The business provides interior and architecture design services to its clients.
He stated that the business identifies a need to employ an in-house accountant on a full-time basis in 2018. The nominee, Ms Wu commenced her full-time employment at the nominating business in September 2018. The employment agreement between the nominee and the nominating business was signed on 30 August 2020.
When questioned, why the business waited two years to employ Ms Wu and lodge the nomination application, he stated his belief that it had something to do with Ms Wu’s visa status and work limitations.
He confirmed that the business never advertised for this position. No labour market testing (LMT) was conducted as the applicant is relying on s.140GBA(1)(c) claiming that requiring LMT would be inconsistent with international trade obligation of Australia.
Mr Lipman stated in his evidence that the business retains services of outside accounting firm just for the purposes of lodging required financial reports with the ATO as the nominee is not a registered tax agent. She is currently in the process of obtaining CPA accreditation.
On 12 December 2023, the Tribunal received documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment C.
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.
The Tribunal has had regard to the material in the Department’s file and is satisfied that:
·the applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa, as per reg 2.73(1);
·the nomination was made using the approved form and fee, as per reg 2.73(3), (4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as required by reg 2.73(5A) of the Regulations;
·the nomination was made in the medium -term stream as the nominated occupation of Accountant (General) is a medium-term specified skilled occupation in the relevant instrument, LIN 19/048, as per reg 2.73(6);
·the applicant identified the nominee, Ms Dong Wu, in the nomination, as per 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 per reg 2.73(9);
·the nomination included disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s 245AR(1) of the Act: reg 2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per reg 2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO, that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: 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 material before the Tribunal that shows there is adverse information (as defined) known to Immigration about the applicant or a person associated with the applicant. 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.
Departmental records indicate that the applicant was approved as a standard business sponsor on 29 September 2020 for the period of 5 years. The Tribunal is therefore satisfied that the applicant is a standard business sponsor.
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 that the applicant owes any debt of the kind mentioned in s 140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. As discussed below, the Tribunal is satisfied that the applicant is not liable to pay a nomination training contribution charge.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
For the nomination to be approved, reg 2.72(8) requires that the nominated occupation, which in this case is Accountant (General), corresponds to an occupation specified by the Minister in an instrument in writing for reg 2.72(8). By reference to the relevant instrument (LIN 19/048 Compilation No. 2), the nominated occupation and its 6-digit code of 221111 correspond to an occupation and 6-digit code specified in the relevant instrument under the Medium and Long-term Strategic Skills List. The circumstances for determining whether certain occupations listed in column 1 of an item of the Medium and Long-term Strategic Skills List or the Regional Occupation List apply to a nominee, require consideration of items 6, 19 and 21 in section 9 of the instrument.
6 The position is a clerical, bookkeeper or accounting clerk position.
9 The position predominantly involves responsibility for low-skilled tasks.
21 The position is in a business that has fewer than 5 employees.
On the evidence before it, the Tribunal finds that the position is not a clerical, bookkeeper or accounting clerk position and does not predominantly involve responsibility for low-skilled tasks. Based on the payroll information provided, the business employed 10 people over the past 12 months and the Tribunal finds that the position is not in a business that has fewer than 5 employees.
Given this, the Tribunal finds that the occupation applies to the nominee. Therefore, reg 2.72(8) is 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 applicant submitted evidence that the nominee has been working in the nominated position since September 2018. It was submitted that Ms Wu had been working for the nominating business for more than 5 years and that she acquired comprehensive knowledge of how to manage company’s accounting procedures. Ms Wu completed both Bachelor of Business and Master of Accounting at RMIT University in Australia. In addition, Ms. Wu holds relevant knowledge of the construction industry through her two years studies on Property at Melbourne University.
The business does not employ bookkeeper and the nominee’s is responsible for all accounting duties, including everyday bank reconciliation, formulating budgetary and accounting policies, accountant receivable and payable managements, payroll management, tax compliances and monthly statements, financial reports and statements, monthly profit and loss, balance sheet schedules, financial investigations, capital financing examinations, operational costs and expenditure managements, providing taxation advices, cash flow monitoring, invoice managements, debt collection, cost and project budget planning, tender analysis, application of computer-based accounting systems and other cost calculation controls.
Having considered the evidence submitted by the applicant, the Tribunal is satisfied that duties and tasks associated with the nominated occupation of Accountant are consistent with both the role’s description in ANZSCO and the operational requirements of the applicant’s business.
In her submissions of 2 October 2023, the applicant’s representative submitted that the business has demonstrated steady growth over the years, with an annual turnover exceeding $1,8 million in 2023.
Based on the evidence before it, the Tribunal is satisfied that the position offered to the nominee is genuine. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee’s experience and qualifications. The Tribunal is satisfied on the evidence before it, that there is a business need for the position which supports the genuine need for the position. The Tribunal has also had regard to the applicant’s financial statements, company tax returns, business activity statements and payroll records, provided to the Tribunal.
Accordingly, in consideration of the evidence before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and it finds that the requirements of reg 2.72(10)(a) are met.
The Tribunal accepts from the material provided, including the nominee’s employment agreement of 30 August 2020, the nominee’s ATO assessment notices, payslips and details of the nominee’s work history with the applicant, that the position is a full-time one. Accordingly, it finds that reg 2.72(10)(b) is met.
As the criteria in both reg 2.72(10)(a) and (b) are satisfied, accordingly the requirements in 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 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 nominated occupation is not specified in the relevant instrument. The information before the Tribunal indicates that the nominee will be engaged as an employee under a written contract of employment by the applicant directly.
The applicant has provided to the Tribunal a copy of the employment agreement dated 30 August 2020 setting out the nominee’s terms and conditions of employment and providing a salary (exclusive of superannuation) of $69,160 per year. According to variation of terms and conditions of employment letter dated 31 October 2022, Ms Wu’s annual salary was increased as of 1 November 2022 to $75,000.
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 relevant instrument. 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 ‘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. Regulation 2.57A provides for the meaning of ‘earnings’: 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 Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings are $75,000 not including superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy reg 2.72(15).

According to IMMI 18/033, the rate for an equivalent nominated occupation or an occupation in relation to which a position is nominated under reg 2.72(17) of the Regulations is the annual earnings of an Australian worker contained in those instruments. In circumstances where there is no Fair Work instrument, State industrial instrument or transitional instrument applicable to a nominated occupation, the rate for a nominated occupation or an occupation in relation to which a position is nominated under reg 5.19 of the Regulations is the annual earnings of an Australian worker by reference to ‘relevant information’.
In the present application, the applicant determined the annual market salary by way of reviewing advertisements for similar positions on Seek and PayScale data. According to the applicant’s market research, the average salary for an Accountant in Melbourne is between $65,000 and $90,000. The nominee’s employment contract includes an annual salary of $75,000, and the Tribunal is satisfied that it aligns with the prevailing market rates in the location.
Based on the evidence before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to the relevant instrument. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of reg 2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings of $75,000 will not be less than the market salary rate and thus the requirements of reg 2.72(15)(e) are met. It further finds that the nominee’s total annual earnings exceed the TSMIT, and thus the requirements of reg 2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of reg 2.72(15)(g) are met.
Accordingly, the requirements of reg 2.72(15) 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). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies.
The Tribunal has had regard to the terms and conditions of the nominee’s contract of employment. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with National Employment Standards.
The Tribunal is therefore satisfied that reg 2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices, given the applicant’s evidence of its ongoing recruitment efforts to date. Accordingly, the Tribunal finds that reg 2.72(18)(b) is 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).
The applicant claims that the labour market testing condition does not apply as the nominee is a national of the People’s Republic of China. Having regard to the nominee’s accounting qualifications as well as her work experience, the Tribunal is of the view that the nominee would be considered a ‘contractual service supplier’ under the China Free Trade agreement (and also the WTO and RCEP agreements), as a natural person who has ‘professional skills and experience and who is assessed as having the necessary qualifications, skills and work experience accepted as meeting Australia’s standards for their nominated occupation … and is engaged by an enterprise lawfully and actively operating in Australia in order to supply a service under a contract within Australia’.
The Tribunal thus finds that in this case, the labour market testing condition does not apply to the applicant, as it would be inconsistent with an international trade obligation determined in the relevant instrument. Given this, 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 application was made on 22 September 2020 and the information from the Department is that the applicant paid the training contribution charge. Therefore, 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.
Antonio Dronjic
Member

Attachment A: Document List
·Letter of support from K.P.D.O signed by Michael Lipman dated 2 October 2023.
·ASIC company statement for K.P.D.O Pty Ltd dated 5 April 2023.
·Department of Home Affairs notification of approval as a standard business sponsor dated 29 September 2020.
·K.P.D.O Pty Ltd BAS dated July 2021 to June 2023.
·Balance sheet dated June 2023.
·Profit and loss statement for the period July 2022 to June 2023.
·K.P.D.O organisation chart undated.
·Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021.
·Dong Wu passport issued 21 June 2023.
·Payslips for Dong Wu dated 15 March 2021 to 14 July 2023.
·Payscale average mid-career accountant salary research undated.
·K.P.D.O budget 2023-24 report undated.
·K.P.D.O Pty Ltd balance sheet dated July 2022.
·K.P.D.O Pty Ltd product list undated.
·K.P.D.O Pty Ltd potential project list undated.
·8 upcoming K.P.D.O project brochures dated 6 September 2023, 20 September 2023, 31 August 2023, 23 June 2023, 20 June 2023, 3 August 2023, 29 August 2023 and 18 September 2023.

Attachment B: Document List
·Dong Wu notice of assessment for years 2018 to 2023.
·Dong Wu tax return summaries for years 2018 to 2023.
·Department of Home Affairs labour market testing exemption policy undated.
Attachment C: Document List
·K.P.D.O Pty Ltd employment contract variations for Dong Wu dated 30 June 2019, 31 January 2021, 31 October 2022 and 30 November 2022.
·Free trade agreement between the government of Australia and the government of the People’s Republic of China dated 17 June 2015.
·Tribunal decision record for case 1921403 dated 20 May 2022 from Deputy President J.L Redfern PSM.
·Tribunal decision record for case 1902192 dated 1 November 2022 from K. Chapman.
ATTACHMENT D - 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 4275

13 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice