MCJ GROUP PTY LTD (Migration)

[2023] AATA 2854

MCJ GROUP PTY LTD (Migration) [2023] AATA 2854 (7 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MCJ GROUP PTY LTD

REPRESENTATIVE:  Mr Theeradech Paopeng (MARN: 0851174)

CASE NUMBER:  1931877

HOME AFFAIRS REFERENCE(S):          BCC2019/3211869

MEMBER:Namoi Dougall

DATE:7 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 07 August 2023 at 10:14am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Cook – position associated with the nominated occupation is genuine – genuine need for the nominator to employ a paid employee – position located in regional Australia – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – no adverse information known to Immigration – decision under review set aside 

LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 2.72, 5.19

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 23 October 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 26 June 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5(n) of the Regulations because the delegate was not satisfied that the applicant had the financial capacity to employ the nominee for 2 years on at least the annual market salary.

5. The applicant was represented in relation to the review.

BACKGROUND

1. The applicant operates the business, Kob-Kun-Ka Café and Thai Restaurant in Kingscliff NSW.

2. 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 this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Application requirements – reg 5.19(4)(a)

1. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

   ·be made in accordance with approved form 1395 (Internet);

   ·identify the position;

   ·identify a person in relation to the position;

   ·identify an occupation in relation to the position,

   ·identify the subclass and stream to which the nomination relates;

   ·be accompanied by the fee mentioned in reg 5.37; and

   ·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

2. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

3. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

4. The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application identifies that the position to be filled is that of Cook. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominator to employ the nominee (Mr Sarunnut Arponsiri), a paid employee, to work in the position of Cook under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).

5. Having found that reg 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.

No adverse information known to Immigration – reg 5.19(4)(b)

1. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

2. There is no evidence or information on the file that indicates that any adverse information is known to immigration. Therefore, the Tribunal is satisfied that reg 5.19(4)(b) is met.

Mandatory licencing, registration and memberships – reg 5.19(4)(c)

1. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

2. In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Cook, and the date of application is 26 June 2019.

3. There is no information or evidence before the Tribunal that the nominated position requires mandatory licencing, registration or membership. Therefore, the Tribunal is satisfied that reg 5.19(4)(c) is met.

Satisfactory compliance with employment laws - reg 5.19(4)(d)

1. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

2. There is no information or evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with employment laws, therefore, the Tribunal is satisfied that reg 5.19(4)(d) is met.

Training contribution debts – reg 5.19(4)(da)

1. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

2. There is no information or evidence that the applicant has any debt due as mentioned in s 140Z of the Act. Therefore, the Tribunal is satisfied that reg 5.19(4)(da) is met.

Visa held by identified person at time of application - reg 5.19(5)(a)

1. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

   ·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or

   ·a Subclass 482 visa in the Medium-term stream; or

   ·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or

   ·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.

2. Departmental records indicate that at the time of the nomination application, the nominee held a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)).

Occupation requirements – regs 5.19(5)(b), (c), (d)

1. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Cook.

2. Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

3. Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is 19/049.

4. Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

5. The Tribunal is satisfied that:

   ·The nominated occupation of Technical Sales Representative is listed in the ANZSCO dictionary and has the same 6-digit occupation code (225499) as the occupation in respect to the most recent Subclass 457/482 visa which was granted.

   ·The nominated occupation is not listed in IMMI 19/049 which was the legislative instrument in force at the time of nomination application so there are no applicable caveats or exemptions for the occupation set out in IMMI 19/049. However, the applicant is exempt from reg 5.19(5)(c) by the provisions of IMMI 22/038 as he held a Subclass 457 visa on 18 April 2017.

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

   ·There is no evidence before the Tribunal that indicates the nominee is not genuinely performing the tasks of the nominated occupation as set out in ANZSCO 351411.

6. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.

Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

1. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

2. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:

   ·a Subclass 457 visa in the Standard Business Sponsorship stream, or

   ·a Subclass 482 visa in the Medium-term stream, or

   ·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.

3. Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.

4. If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.

5. In this case, the nomination application was made on 26 June 2019. The relevant instrument made under reg 5.19(6) is IMMI 22/038. Having regard to the terms of that instrument, the Tribunal finds that for persons (such as the nominee) who on 18 April 2017, held a Subclass 457 visa the qualifying period is 2 years.

6. The Tribunal notes that the nominee’s Subclass 457 visa was granted on 14 September 2015.

7. Based on the PAYG summaries provided for the financial years ending 30 June 2016 and 2018; the nominee Income Tax Returns for the period ending 30 June 2017 and 2018 to 2022; the nominee’s Notice of Assessment for the tax year ending 30 June 2016 and then 2019 to 2022; Payroll Employee Summaries for the tax years ending 30 June 2018 to 2023; and the employment contracts between the nominee and the applicant dated 10 March 2015 and 28 June 2019, the Tribunal is also satisfied that such employment was undertaken on a full-time basis in Australia. Based on Departmental records, the Tribunal is further satisfied that the nominee’s Subclass 457 visa was granted in relation to the position of Cook.

8. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

Status of the nominator – reg 5.19(5)(h)

1. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

2. Departmental records indicate that the applicant was the last standard business sponsor to identify the nominee in an approved reg 2.72 nomination.

3. Based on the financial documents including ABN details, ASIC current and historical extract, company registration certificate, business activity statements, and financial statements and other financial information, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.

4. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

Genuine need for employment – regs 5.19(5)(j) and (k)

1. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035) reg 5.19(7). The Tribunal is satisfied that the nominated occupation of Cook is not an exempt occupation.

2. Provided to the Tribunal was a position description which set out the dire sot be performed by the nominee is a Cook which are as follows:

   The duties and tasks obligations at our restaurant are as follows:

   ·Preparing meat and vegetable ingredients

   ·Seasoning food during cooking

   ·Marinate meat

   ·Porting food, for example, Green curry, Panang curry

   ·Placing food into the plates and adding sauce and garnishes

   ·Storing food in temperature controlled facilities

   ·Preparing food to special dietary requirements

   ·Cook food with wok

   ·May train other kitchen staff and apprentices

   ·Cleaning the workplace after trading hour by using disinfectants

   ·Management of customer orders

   ·Avoiding food cross-contamination, be aware of food safety issues

   ·Preparing the curry sauce, dipping sauce and salad dressing

   ·Preparing Thai dessert

   ·Preparing entree’

   ·Creating new menus for the “specials”; weekly special, monthly special...etc... with the various recommendation

   ·Check food expiry dates and discarded any out-dated food.

3. In a genuine need statement provided with an organisational chart provided to the Tribunal it was stated that the hospital business was very competitive especially in Kingscliff, NSW as there is not a large pool of skilled workers in a remote regional area. The business needs staff that are attentive to detail, approachable and easy to work with. The nominee has extensive experience and exceeds expectation. The nominee has worked with the applicant for many years and the applicant would like to continue to do so. It was further stated that it was extremely hard to find staff during the COVID-19 pandemic and even now as not many want to work in the industry and there is a critical shortage of potential employees holding working holiday visas. Without suitably skilled staff, the applicant is at risk of being under resourced which would have a negative impact on the buisness.

4. The Tribunal accepts that the applicant restaurant business needs a full-time Cook and that there are skills shortages in regional NSW. The Tribunal also notes that the nominee has worked for the applicant since 2015. Therefore, the Tribunal is satisfied that the application identified a need for the nominee to be employed in the position of Cook under the applicant’s direct control and the need is genuine.

5. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met

Future employment – regs 5.19(5)(l), (m), (n)

1. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

2. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument (IMMI 18/035): reg 5.19(7).

3. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

1. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or 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.

2. Provided to the Tribunal was a signed Contract of Employment dated 28 June 2019 which indicated that the nominee would be employed full time as a Cook for 4 years subject to renewal.

3. On the above, the Tribunal is satisfied that the nominee will be employed for at least 2 years and that the terms and conditions of his employment will not exclude the possibility of extending the period of employment.

4. Provided to the Tribunal were the financial statements for the financial years ending 30 June 2021 and 2022 and for the period ending 30 April 2023. The turnovers for those periods were: $319,874; $294,872 and $271,096 respectively and the profits were: $43,521; $25,962; and $19,424 respectively. Net assets for those periods were $141,819; $167,781; and $189,864 respectively.

5. On the financial information provided, the Tribunal is satisfied that the applicant’s business has the financial capacity to employ the nominee for at least 2 years and pay him the AMSR of $55,451 plus the superannuation guarantee.

6. Given the above findings, the Tribunal is satisfied that: regs 5.19(5)(l), (m) and (n) are met.

Annual earnings – reg 5.19(5)(o)

1. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument 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 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 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: regs 2.72(15)(d) and 2.72(16)(a);

   ·the identified person’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): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

   ·the identified person’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: regs 2.72(15)(f) and 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. The Contract of Employment dated 28 June 2019 stated that the nominee’s renumeration is based on ‘the FairWork Ombudsman, Restaurant Industry Award 2010; Modern Award and salary market survey’. The total renumeration was stated to be $55,000 plus the superannuation guarantee and a professional development and expenses allowance of $1,000. The contract then went on to list in detail allowances and other conditions. The Payroll Employee Summary for the period ending 30 June 2023 indicated that nominee’s salary was $58,588.40. The applicant’s payslip for 6 June 2023 to 17 July 2023 indicates that the applicant’s hourly rate is $29.65.

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

4. The nominee is being paid as a Cook under the Restaurant Industries Award 2022 MA000119. The Tribunal is satisfied that all relevant allowances and another conditions from the Award have been incorporated into the Contract of Employment that the nominee is not being paid on an annualised basis. The highest level and grade under the award is Level 6, Cook grade 5 (tradesman) which is the appropriate level considering the length of time he has been employed by the applicant and his position in the organisational chart. The annual salary based on the minimum rates for that level and grade is $1,085.60 per week ($8.57 per hour) which is $56,451.20.

5. Therefore, the Tribunal is satisfied that the rate is $55,451 and it has been determined by the applicant in accordance with the relevant instrument. Further, the Tribunal is satisfied that the applicant’s annual earnings of $58,588, are not less than the TSMIT and not less than the AMSR for the occupation of Cook. For these reasons the requirements of reg 2.72(15)(c), (d) (e)and (f) are met.

6. There is no information on the Departmental or Tribunal files that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

7. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.

No information to indicate less favourable employment conditions – reg 5.19(5)(p)

1. Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

2. There is no information on the Departmental file that indicates that the employment conditions (other than earnings) of the nominee are less favourable that those that apply, or would apply to an Australian equivalent worker.

3. Given the above findings made above in relation to other criteria, the Tribunal is satisfied that reg 5.19(5)(p) is met.

Information required by the Minister – reg 5.19(5)(q)

1. Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.

2. In light of the findings made above in relation to other criteria, the Tribunal is satisfied that reg 5.19(5)(q) is met.

3. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Namoi Dougall
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)either:

(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

(ii)apply to the identified person in accordance with an instrument made under that subregulation;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 3 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

(ii)is actively and lawfully operating a business in Australia;

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)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 identified person 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;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

(8)The Minister may, by legislative instrument, specify:

(a)occupations for the purposes of paragraph (5)(c); and

(b)persons who are exempt from the operation of that paragraph; and

(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(i)the nominator;

(ii)the identified person;

(iii)the occupation;

(iv)the position in which the identified person is to work;

(v)the circumstances in which the occupation is undertaken;

(vi)the circumstances in which the person is to be employed in the position.