Krueger Transport Equipment Pty Ltd (Migration)

Krueger Transport Equipment Pty Ltd (Migration) [2023] AATA 4308 (13 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Krueger Transport Equipment Pty Ltd
REPRESENTATIVE:  Ms Kathy Liu (MARN: 0958014)
CASE NUMBER:  2109682
HOME AFFAIRS REFERENCE(S):          BCC2021/1149340
MEMBER:Peter Emmerton
DATE:13 December 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 13 December 2023 at 1:10pm
CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – occupation of Engineering Technologist – genuine position – labour market testing – updated financial information – tasks of the position correspond to nominated occupation – employment conditions no less favourable – decision under review set aside
LEGISLATION
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration Act 1958, ss 140, 245
Migration Amendment (Skilling Australians Fund) Regulations 2018, cl 7602
Migration Regulations 1994, rr 1.03, 1.13, 2.57, 2.72, 2.73, 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 12 July 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 27 May 2021. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10)(a) because the delegate was not satisfied that the position associated with the occupation is genuine and a full-time position.
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 Tribunal has read and carefully considered the evidence previously presented to the delegate and the Department.
The Tribunal has read and carefully considered the evidence presented to it as listed below.
- ASIC Extract
- SBS Approval-20 September 2023
- BAS Statements from July 2022
- 2022 Company Financials
- Organisational Structure Chart
- Current organizational chart of Manufacturing Unit where nominee is working
- Information about the roles and duties of the nominated occupation
- Supporting Letter from General Manager David Grant 10 November 2023
- Employment Contract 10 November 2023
- Position Description
- PTE Result 27 February 2023
- Labour Market Testing at the time of nomination lodgement
- Evidence of job ads placed prior to nomination lodgement
- Visa status of nominee and English language ability
- Sc408 visa grant notice
- Current VEVO reflecting current BVA
- Positive skill assessment Engineers Australia, Mechanical Engineer 2 March 2023
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 nominator, Krueger Transport Equipment Pty Ltd, lodged a nomination for approval on 27 May 2021, for an Engineering Technologist, ANZSCO: 233914. The nominee / visa applicant was Mr Vijay Sai Krishnam Raju Nadimpally, and his most recent contract dated 10 November 2023 shows the base rate of pay is $78,000 per annum plus the Superannuation Guarantee.
Based on the evidence before the Tribunal the person 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). In this case a Subclass 482 visa.
The nomination was made using the approved form and fee, Business Visas: regs 2.73(3), (4) and (5) and the nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A).
The nomination is in the Medium-term stream and is a strategic skills specified occupation and satisfies 2.73(6).
The applicant has identified the nominee in the nomination: reg 2.73(8).
The nomination includes the name of the occupation, Engineering Technologist and the corresponding 6-digit code, ANZSCO 233914, skill level 1, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination including the Financial reports for FY 2021 and FY 2022 and corresponding BAS Reports as required to satisfy reg 2.73(9).
The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: as required to satisfy 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, unless the occupation is exempt. The contract has been perused by the Tribunal as required to satisfy 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 (or the relevant instrument if no ANZSCO code, in this case ANZSCO 233914, Engineering Technologist. The qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO 233914. In this case the visa applicant possesses a Master of Professional Engineering Degree and a Bachelor of Engineering, as deemed appropriate for this occupation. The position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14). For clarity it is noted the business is located in Australia.
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.
Based on the evidence in the Nomination form, the Tribunal is satisfied the nominator has certified in writing they had not engaged in conduct, in relation to the nomination, that constitutes a contravention of the Act. No evidence has been brought before to Tribunal to the contrary.
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.
Based on the evidence in the 482-visa nomination form and Departmental records, the Tribunal is satisfied the nominator Krueger Transport Pty Ltd is a Standard Business Sponsor, (SBS). Their current SBS expires 20 September 2028.
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 placed before the Tribunal of any debt mentioned in s 140ZO of the Act that is unpaid.
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),(7) and reg 2.72(14) do not apply. It is however noted that the language test requirements are met.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
Based on the evidence, the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument (LIN 19/048). No relevant inapplicability conditions were specified in the relevant instrument. Further, the evidence contained in the Department file, has satisfied the Tribunal the occupation is applicable to the person identified in the nomination.
For these reasons the requirements of reg 2.72(8) (9) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has carefully perused the evidence provided to it in relation to the genuineness of the position and accepts that it is both genuine and full-time.
It has examined the Employment Contract, the stated duties of the visa applicant, the employment advertisements, the qualifications of the visa applicant and the nature of the very substantial and sophisticated business in which the applicant is employed. It is conversant with the increasingly sophisticated practices associated with a modern logistics business and the need for very complex engineering which is constantly changing in a rapidly evolving ecosystem. It is mindful of the need for precise engineering from both a business standpoint and an ever-present ‘safety first’ environment internally and externally. Such businesses require a vast array of technically skilled individuals in electronics, programming, self-driving technology, CAD design, mechanical engineering, automotive mechanics, electrical mechanics to name just a few fields.
The Tribunal has carefully perused the detailed written statement dated 10 November 2023 prepared by the General Manager-Manufacturing at Krueger Transport Pty Ltd, some of which has been reproduced below.
‘As our Engineering Technologist, Vijay's role involves liaising between manufacturing and engineering to identify and rectify engineering issues that arise during production of truck trailers. Vijay uses engineering principles and technical expertise to support the design, development, and implementation of engineering drawings into truck trailers.
Specifically, he communicates with the engineering/design team to develop or implement ideas or designs. For example, in a recent issue during the production of a Kurtainer we discovered the fifth wheel was going to foul with a gusset that was already fitted. Vijay worked with engineering on a solution to this. He also then worked with production to fix this issue at hand and also to ensure that similar issues would be mitigated in future by having all the drawings updated.
This demonstrated technical support is essential in ensuring that our issues regarding design are corrected at the earliest possible time to ensure production is kept on track at all times.
Other examples of projects that Vijay has been driving are:
• Engineering design procedures and quality assurance checklist for wiring bars and wiring tubes for semi-trailers
• Design and standardization for ringfeeder coupling mounting module for skel, straight and drop deck 'b' trailer
• Reducing cycle time and rework in paint for Linfox "a" rollback kurtainer by designing bolt on grip handle’
The Manager went on to detail the applicant’s current duties which appear to have evolved and increased in sophistication post the original appointment in 2019. This is a common occurrence in long term employees as they develop skills and their organisations grow. Both circumstances appear to be at play in this instance.
‘Design and Development: Collaborate with manufacturing and engineering departments to ensure quality of design for truck trailer components. Utilise engineering tools to collaborate with drafting team to create detailed technical drawings and specifications for trailer chassis, suspension, braking systems, and other key components.
Prototyping and Testing: Assist in the creation of prototypes and conduct tests to evaluate the performance, durability, and safety of trailer designs. Analyse test data, identify areas for improvement, and contribute to design modifications.
Quality Assurance: Ensure that trailer components and systems meet or exceed industry standards, regulations, and safety requirements. Conduct inspections and quality checks to maintain high-quality manufacturing standards.
Technical Support: Provide technical support to the production team, addressing manufacturing challenges and implementing solutions to enhance efficiency and productivity. Collaborate with manufacturing personnel to resolve technical issues on the production floor.
Documentation: Prepare comprehensive technical documentation, including engineering drawings, bills of materials, and assembly instructions, liaising with engineering and drafting personnel. Maintain accurate records of design changes, tests, and validations.
Collaboration: Work closely with cross-functional teams, including engineers, production managers, and procurement specialists, to ensure seamless communication and coordination. Participate in design review meetings and provide valuable input for continuous improvement.
Compliance: Stay abreast of industry standards, regulations, and certifications relevant to truck trailer manufacturing. Ensure that designs adhere to applicable safety and environmental regulations.’
The Tribunal has no evidence before it that would lead it to conclude the statements made in relation to the visa applicant’s skill base or the application of those skills to his duties are not as stated. The Tribunal has researched the company and its capabilities. It is satisfied that the need for this role is genuine and is full-time.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 19/212. 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 nominated occupation is not specified in the instrument IMMI 19/212 and the applicant is not an overseas business sponsor. The nominee will be engaged under a written contract of employment by the applicant and the applicant has given the Minister a copy of the contract signed by the employer and nominee. There is no evidence before the Tribunal that indicates the contrary position.
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. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The annual contracted earnings substantially exceed the amount specified in the relevant instrument for reg 2.72(15)(b). The most recent signed contract dated 10 November 2023 indicates a salary of $78,000 per annum plus the current Superannuation Guarantee.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.
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, as verified by reference to the ABN details on the ASIC website, in Australia and reg 2.72(18)(b) does apply.
The Tribunal has carefully scrutinised the current employment contact of the visa applicant and analysed the employment conditions. In addition, it has had regard to the current market conditions in this field and has concluded there is no evidence before it which would allow a conclusion the nominee’s conditions of employment 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.
There is no evidence before the Tribunal which would indicate the existence of any discriminatory recruitment practices being undertaken by the nominating entity.
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 IMMI 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 IMMI 18/036. It is noted the nomination date was 27 May 2021.
The Tribunal notes that major disaster or skill and occupational exemptions in s.140GBB and s.140GBC do not apply.
Labour market testing conditions do not apply to the applicant as it would be inconsistent with an international trade obligation specified in the relevant instrument, LIN 20/029.
The Tribunal was provided with detailed recruitment activity, applicant numbers, outcomes, reasons for outcomes, modes of recruitment and advertising. It is satisfied that regardless of the requirements this organisation has made comprehensive attempts to recruit from within a limited suitable applicant pool.
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 Tribunal is satisfied the appropriate nomination training contribution charge was paid.
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.
Peter Emmerton
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 4308

13 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction