Mariakita Pty Ltd (Migration)

[2022] AATA 331

Mariakita Pty Ltd (Migration) [2022] AATA 331 (9 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mariakita Pty Ltd

REPRESENTATIVE:  Ms Valentina Segreto (MARN: 1281543)

CASE NUMBER:  1829542

HOME AFFAIRS REFERENCE(S):          BCC2018/3090643

MEMBER:George Hallwood

DATE:9 February 2022

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 09 February 2022 at 2:24pm

CATCHWORDS

MIGRATION – approval of a nomination – occupation of Café or Restaurant Manager – annual market salary rate – genuine position – labour market testing – position advertised – employment conditions no less favourable – nomination training contribution charge payment – decision under review set aside 

LEGISLATION

Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 September 2018 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).

2. The applicant applied for approval on 28 September 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(15) because they were not satisfied that the applicant has determined the annual market salary rate (AMSR) for the nominated occupation in accordance with method specified in the Legislative Instrument IMMI 18/033; and therefore paragraph 2.72(15)(c) was not met.

4. Mr Pedro Barbosa appeared before the Tribunal on behalf of the applicant on 9 February 2022 to give evidence and present arguments. This was a combined hearing with the associated nominee, Mr Emidio Candeloro file 1833608, and the Tribunal also received oral evidence from Mr Candeloro.

5. The applicant was represented in relation to the review by Ms Valentina Segreto.

6. 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

1. 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

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

2. The Tribunal has had regard to the material on the Department’s file and is satisfied that the application was compliant with the process set out in r.2.73:

• The applicant nominated an occupation, Café or Restaurant Manager under s 140GB(1)(b) in relation to an applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1);

• The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);

• The nomination was accompanied by the applicable nomination training contribution charge, in this case $2,400: reg 2.73(5A);

• The nomination is in the Short-term stream as the occupation is a short term strategic skills specified occupation – as described in the relevant instrument IMMI 18/048: reg 2.73(6);

• The applicant has identified the nominee, Mr Candeloro, in the nomination: reg 2.73(8);

• The nomination includes: the name of the occupation, Café or Restaurant Manager, and the corresponding 6 digit code, 141111; the location/s at which the occupation will be carried out, Kings Square Western Australia; the proposed period of stay for a visa granted on the basis of the nomination – up to 2 years; the then annual turnover for the nominator, and other specified information: reg 2.73(9);

• The applicant has provided the certification in the nomination in respect of whether or not the person has engaged in conduct that constitutes a contravention of s 245AR(1) of the Act: reg 2.73(12);

• The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);

• The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO;

  othat the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and,

  othat 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).

1. For these reasons the requirements of reg 2.72(3) are met.

No adverse information known to Immigration

1. 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.

2. In their nomination application form dated 16 August 2018 the applicant indicated there was no adverse information about the background of the applicant’s business or any principals of the business.

3. At the hearing Mr Barbosa told the Tribunal that the applicant – Mariakita Pty Ltd trading as Degani Kings Square - had not, to his knowledge, been investigated by Immigration.

4. There is no evidence before the Tribunal to indicate that adverse information is known to Immigration about the applicant or an associated person.

5. For these reasons the requirements of r.2.72(4) are met.

Nominator is a standard business sponsor

1. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

2. Departmental records show that the applicant is a standard business sponsor from 7 August 2017 to 7 August 2022.

3. For this reason, the requirements of reg 2.72(5) are met.

Payment of debt mentioned in s 140ZO

1. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

2. The applicant lodged their application in relation to this nomination on 16 August 2018. The nomination training contribution charge is applicable to nomination applications made on or after 12 August 2018.

3. The nomination application states that the proposed period of employment of the nominee is up to two years. The relevant nomination training contribution charge is $1,200 per annum. Departmental documents identify that $2,400 was paid for the nomination training contribution charge at the time of the application by the applicant along with their application fee. The Tribunal is therefore satisfied that there is no debt in relation to this charge.

4. For these reasons the requirements of reg 2.72(5A) are met.

Requirements for existing Subclass 457 or Subclass 482 visa holders

1. 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).

2. At the hearing Mr Candeloro confirmed that he is not the holder of a Subclass 457 or Subclass 482 visa and for this reason the requirements of reg 2.72(6) do not apply.

3. The Tribunal notes that Mr Candeloro achieved an overall score of 6 (Listening 6, Reading 5, Writing 5.5, Speaking 7) on an IELTS test undertaken on 2 June 2018. The Tribunal is satisfied that the nominee satisfies the language test requirements for a subclass 482 visa in the Medium-term stream as set out in the instrument IMMI 18/032. For these reasons the requirements of reg 2.72(14) are met.

Specified occupation

1. 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, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.

2. The nominated occupation of Café or Restaurant Manager with the six-digit code 141111 is specified at item 40 in Section 5 (the short-term strategic skills list) of the relevant instrument IMMI 18/048. This occupation is subject to an inapplicability provision, relevantly item 8 in section 8 of the instrument which states that a position in a limited service restaurant renders the occupation inapplicable. The term ‘limited service restaurant’ is defined in section 4 of the instrument as including:

   (a) a fast food or takeaway food service;

   (b) a fast casual restaurant;

   (c) a drinking establishment that offers only a limited food service;

   (d) a limited service cafe, including a coffee shop or mall cafe;

   (e) a limited service pizza restaurant.

3. Submissions from the applicant state that the occupation is in a business that is fully licenced, has table service (apart from a brief period during COVID), food is cooked and served on the premises, the restaurant has an a la carte menu and the business is not located in a shopping centre or mall. At the hearing Mr Barbosa told the Tribunal that the liquor licence caters for up to 100 people and tables are set for 80 to 90 people.  

4. The Tribunal is satisfied that the applicant’s business is not a limited service restaurant and is not the subject of the inapplicability provisions set out in the instrument.

5. The nominee, Mr Candeloro holds qualifications including a Diploma of Hospitality (AQF) and a Bachelor of Economics from Italy together with several years experience as a Café or Restaurant Manager. ANZSCO identifies the occupation of Café or Restaurant Manager – 141111 as a skill level 2 occupation requiring AQF Certificate III including at least two years on the job training, or an AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience may substitute for the formal qualifications in some instances. On 27 February 2020 VetAssess provided a skills assessment result for Mr Candeloro stating that he was assessed as suitable for migration purposes in the nominated occupation. The Tribunal is satisfied Mr Candeloro has the relevant qualifications and experience identified in ANZSCO for this Skill Level 2 applicable to the occupation of Café or Restaurant Manager.

6. Therefore, the Tribunal is satisfied that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 18/048, and the occupation is applicable to the person identified in the nomination in accordance with the instrument.

7. For these reasons the requirements of reg 2.72(8) are met.

Position must be genuine and full-time

1. 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.

2. The nomination application dated 16 August 2018 and the letter of engagement dated 10 September 2021 between the applicant and Mr Candeloro identify that the employment is on a full-time basis commencing upon the granting of the visa.

3. As a medium sized restaurant seating about 80-90 people with a dozen staff, the Tribunal is satisfied based on the oral evidence of Mr Barbosa together with the business financial information and organisation chart, that there is a genuine need to employ a full time Restaurant Manager. The nomination application contains a job description of the position associated with the nominated occupation of Café or Restaurant Manager and the tasks of the position substantially align with those listed in ANZSCO for the occupation of Café or Restaurant Manager – 141111.

4. Having qualitatively assessed the position and comparing this with the occupation nominated the Tribunal is satisfied that the person occupying the position is required to undertake the majority of ‘tasks’ of the kind set forth in ANZSCO, and the ‘tasks’ required to be undertaken include a significant majority of the tasks set forth in ANZSCO.

5. For these reasons the requirements of reg 2.72(10) are met.

Employment under contract

1. Regulations 2.72(11) and (12) require relevantly 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. 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)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.

2. The applicant has provided a signed letter of engagement dated 10 September 2021. The nominee is employed by the applicant.

3. For these reasons the requirements of reg 2.72(11) are met.

Annual earnings

1. 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).

2. As the annual earnings in relation to the occupation, $56,900, will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

3. The applicant submitted that market salary rate was determined using: the Hospitality Industry (General) Award Level 5 guest service supervisor ($54,794.48); research from advertisements for similar roles ($55,000 to $70,000); and Payscale report ($56,843 average Restaurant Manager salary).

4. The Tribunal is satisfied that $56,900 reflects the annual market salary rate for the nominated occupation and that this has been determined by the applicant in accordance with the relevant instrument. For these reasons the requirements of reg 2.72(15)(c) are met.

5. The TSMIT is relevantly $53,900 and the rate being paid of $56,900, excluding any non-monetary benefits, for the occupation is not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(d) are met.

6. The nominee’s annual earnings of $56,900 in relation to the occupation of Café or Restaurant Manager has been determined using a method that includes consideration of the rate of the occupation and is within the range of pay for that occupation in Western Australia. The Tribunal is satisfied that the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.

7. The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation have been set at $56,900. The TSMIT is $53,900. The Tribunal is satisfied the nominee’s annual earnings will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.

8. There is no information before the Tribunal to indicate the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation.

9. For these reasons the requirements of reg 2.72(15)(g) are met.

Employment conditions

1. 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.

2. 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) does not apply.

3. The employment contract between the applicant and Mr Candeloro contains a standard set of employment conditions (other than in relation to earnings). There is no information before the Tribunal that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.

4. The applicant told the Tribunal that they have not been investigated or found to have engaged in any discriminatory recruitment practices. There is nothing before the Tribunal to suggest otherwise.

1. For these reasons the requirements of reg 2.72(18)(b) are met.

Labour Market Testing

1. 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 the Minister has determined it would be inconsistent with a specified international trade obligation.

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.

3. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.

4. 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.

5. In this case it is not disputed and accepted by the Tribunal that the labour market testing condition applies to the applicant.

6. The position was advertised was advertised using SEEK and CareerOne during July 2018 and details of the labour market testing accompanied the nomination application demonstrating to the satisfaction of the Tribunal:

   o labour market testing has been undertaken in the specified period – ss 140GBA(3)(a) and (4);

   o   the nomination was accompanied by evidence of the testing (s 140GBA(3)(b)) including:

   §mandatory evidence in relation to recruitment attempts (including details, fee and expenses of advertising for the position or similar positions) and if relevant recent retrenchments/redundancies - ss 140GBA(5)(a), (6)(a);

   o there were no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder not readily available to fill the nominated position – s 140GBA(3)(d);

7. At the hearing Mr Barbosa told the Tribunal that no Australians or permanent residents were made redundant/retrenched from the nominated occupation. Mr Barbosa told the Tribunal that he cannot remember ever having retrenched or made redundant any staff member – s 140GBA(4A).

8. For these reasons, the Tribunal is satisfied the labour market testing requirements in s 140GBA are met.

Nomination training contribution charge

1. 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).

2. In this case the nomination was made on 16 August 2018 and the liability to pay the charge arises for nominations made on or after 12 August 2018. Therefore, there is a liability to pay the charge.

3. The charge in this case is relevantly $1,200 per annum over a period of two years.

4. Departmental records demonstrate that the applicant paid $2,400 to meet this charge when they lodged their application.

5. For these reasons the requirements of s 140GB(2)(aa) are met.

Concluding paragraph

1. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

George Hallwood
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.

1. The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

2. 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.

3. 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.

1. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

3. The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. …