Mejico Sydney Pty Ltd (Migration)

Mejico Sydney Pty Ltd (Migration) [2024] AATA 933 (19 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mejico Sydney Pty Ltd
REPRESENTATIVE:  Mrs Catherine Mcmillan (MARN: 1174027)
CASE NUMBER:  2110624
HOME AFFAIRS REFERENCE(S):          BCC2020/1146019
MEMBER:Amanda Mendes Da Costa
DATE:19 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 19 April 2024 at 9.14am

CATCHWORDS
MIGRATION – approval of a nomination – Sort-term stream – position of Café or Restaurant Manager – warning for previous underpayment – tasks of the position correspond to nominated occupation – genuine position – annual earnings – terms and conditions of employment no less favourable – job advertisements – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018, s 7
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 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 13 March 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(1)(a) because the position associated with the nominated occupation is genuine.
Via an internet-enabled audio-visual platform, Ms Amanda Fuller (Group Executive Chef) appeared for the applicant before the Tribunal on 26 March 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that Ms Fuller, the representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to Ms Fuller the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed Ms Fuller that it would seek submissions from both other and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
Having reviewed the Departmental file, the Tribunal is satisfied that:
·The person is nominating an occupation under s 140GB(1)(b) in relation to an 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 an applicable nomination training contribution charge: reg 2.73(5A).
·The nomination is in the Short-term stream and the occupation is a short term specified skilled occupation: reg 2.73(6).
·The applicant has identified the nominee (Amarsanaa Noack) in the nomination: reg 2.73(8).
·The nomination includes the name of the occupation and the corresponding 6-digit code, 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, and any other specified information: reg 2.73(9).
·The nomination includes written certification that the nominator has not engaged in conduct that contravenes 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; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and, that the position is in the person’s or an associated entity’s business: reg 2.73(14).
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
The Tribunal notes that the Department’s file contains a letter (dated 21 November 2019) to the applicant from Australian Border Force (ABF) advising that although circumstances exist to bar or cancel the applicant’s standard business sponsorship, ABF has decided to give the applicant a formal warning. In its letter ABF explains that the circusmtnces warranting such a warning are that the applicant has failed to satisfy its sponsorship obligations in underpaying one employee who received less than the correct restaurant annualised salary. The underpayment totalled $610.62 over a period of more than 12 months.
The Tribunal discussed this information with Ms Fuller during the hearing. She admitted that the applicant had received a warning’ in relation to the underpayment of a previously sponsored employee. However, Ms Fuller explained that the applicant had addressed the underpayment (which was not intentional) by reimbursing the employee.
The Tribunal accepts that the information regarding the formal warning given to the applicant by ABF constitutes adverse information for the purpose of reg 1.13A. However, there is no evidence before the Tribunal of any other instances of adverse information known by the Department against the applicant.
The Tribunal has taken into account that the applicant’s instance of non-compliance with its sponsorship obligations occurred five years ago, that there was only one employee involved, that the applicant has not committed further sponsorship offences and that the employee in question was reimbursed the monies owed.
Accordingly, the Tribunal finds that although there is adverse information known to Immigration about the applicant, it is reasonable to disregard such information.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant is a standard business sponsor having been approved on 5 December 2022 for a period of five years, ending 5 December 2027.
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.
The Departmental file contains no record of any debt, and the Tribunal infers that there is no outstanding debt under s 140ZO.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The applicant has nominated the position of Café or Restaurant Manager which is subject to Inapplicability Condition 8 which requires that the nominated position is not in a limited-service restaurant.
Based on the documentary and oral evidence before it, the Tribunal is satisfied that the applicant’s business consists of five restaurants which open seven days a week, offer a full menu with table service and are licensed to serve alcohol. The Restaurant Manager is responsible for managing wait and bar staff, ensuring service to customers, and ensuring as licensee that alcohol is sold and consumed in accordance with legislative requirements.
For these reasons, the requirements of reg 2.72(8) 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 to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant company is part of the The Sam Price Group, a restaurant group located in Melbourne and Sydney, including Mejico, INDU and Kid Kyoto. The nominee is currently employed as a Restaurant Manager in the INDU restaurant in Sydney. This restaurant focuses on Sri Lankan cuisine and seats 95 patrons. The restaurant offers full service to customers and has a liquor licence.
During the hearing Ms Fuller explained that INDU requires a Restaurant Manger to be on duty between the hours of 10am and 1am (the next day) from Monday to Saturday. To effectively operate the restaurant, the applicant requires a manger to be present for a total of 90 hours per week, with overall responsibility for the restaurant. Ms Fuller further explained that the restaurant’s in-service hours total 84 hours per week (12pm to 1am) on six days per week. Due to the demands of the restaurant, the management team on each shift include a manager organising and managing the kitchen pass area of the restaurant to ensure the flow and quality of food from the kitchen and prevent backlogs and delays in food service. The other manager is responsible for controlling and managing the flow of guests, co-ordinating bookings, and walk-in customers, managing the floor staff, assisting staff with any queries or problems, and supervising the serving of liquor in accordance with legislative requirements. The nominee undertakes this latter role.
Ms Fuller told the Tribunal that in addition to the 84 hours of service per week, there is 8-10 hours of administrative work to be undertaken by the management team of the restaurant each week. These duties include working alongside the head chef regarding menu design in accordance with budgetary requirements, rosters, training, sales reporting, performance reviews of staff, placement of orders, stock taking, banking, inspecting the premises, management meetings, creating and managing events and recruitment of new staff. Ms Fuller explained that the nominee undertakes each of these tasks and has the additional responsibility as licensee of INDU for ensuring that liquor sales and service complies with the conditions of the restaurant’s liquor licence. Ms Fuller told the Tribunal that the nominee has been employed in this role for approximately six years with skill and diligence. She described him as a valued member of the applicant’s management team.
The Tribunal has considered the position description for the nominated position and the tasks set out for a Café or Restaurant Manager in the Australian and new Zealand Standard Classification of Occupations (ANZSCO) at ANZSCO 141111. Relevantly, Unit Group 1411 states that Café and Restaurant Managers organise and control the operations of cafes, restaurants, and related establishments to provide dining and catering services.
The tasks of a Café or Restaurant Manager (as set out in the ANZSCO) include:
·Planning menus in consultation with Chefs.
·Planning and organising special functions.
·Arranging the purchasing and pricing of goods according to budget.
·Maintaining records of stock levels and financial transactions.
·Ensuring dining facilities comply with health regulations and are clean, functional and are of suitable appearance.
·Conferring with customers to assess their satisfaction with meals and service.
·Selecting, training and supervising waiting and kitchen staff.
·May take reservations, greet guests, and assist in taking orders.
The Tribunal is satisfied that the proposed tasks of the nominee as set out in the position description and evidence of Ms Fuller at the hearing are commensurate with those set out in the ANZSCO dictionary for a Café or Restaurant Manager.
It notes that the Liquor Licence details for Indu Restaurant (as of 3 April 2024) recorded by the Independent Liquor Licensing and Gaming Authority NSW show that the restaurant has a current Liquor-on-premises licence with the nominee Manager listed as the Restaurant Manager.
Based on the evidence provided (including the organisational chart, genuine position statement, position description and the evidence of Ms Fuller at the hearing) the Tribunal is satisfied that the applicant is operating a restaurant business comprising of several restaurants in both Melbourne and Sydney. The Tribunal is further satisfied that the INDU restaurant where the nominated position is based requires the services of more than one restaurant manager, including the nominee. Having regard to the evidence, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and as such the requirement in reg 2.72(10)(a) of the Regulations is met.
The Tribunal has considered the updated contract of employment and the evidence of Ms Fuller at the hearing regarding both the nominee’s current and proposed hours of employment.
Based on the above evidence the Tribunal is satisfied that the position offered to the nominee is full-time and therefore reg 2.72(1)(b) is met.
As the requirements in both reg 2.72910(a) and reg 2.72(1)(b) are met, the Tribunal finds that reg 2.72(10) of the Regulations is 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 18/035. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
The nominated occupation of Café or Restaurant Manager is not specified as exempt under the legislative instrument.
The applicant has supplied a contract of employment between Mejico Sydney Pty Ltd and Amarsanaa Noack dated 5 March 2023 and an updated employment contract dated 15 April 2024. Each of the contracts has been signed by the employer and the nominee and set out that the nominee will be engaged as an employee under a written contract with the nominator. The Tribunal further notes that the applicant reviewed the nominee’s salary on 13 July 2023 and increased it to $85,000 (plus superannuation) er annum. This increased salary is reflected in the updated employment contract.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the 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 Tribunal has considered the contract of employment and updated contract of employment. Based on the evidence provided, the Tribunal is satisfied that nominee’s annual earnings are not equal to or greater than $250,000 per annum. Accordingly, the requirements of reg 2.729125) must be met.
Where there is a fair work instrument or transitional instrument applicable to an Australian worker who is employed at the same workplace, the annual market salary rate for the equivalent nominated occupation must be set by reference to that instrument.
The Tribunal notes that the original salary stated in the nomination form was $60,000 per annum which has subsequently increased to $85,000 in recognition of the nominee’s increased length of service to the applicant’s business, his increased skills and experience together with increases in the market salary rate which have occurred since the position was first nominated.
The Tribunal has considered the information contained in the Restaurant Industry Award 2020 which applies to businesses and employees in the restaurant and café industry. The Tribunal is satisfied that nominee’s current and proposed salary is above the rate set out in the Award for the nominated position.
The Tribunal notes that the applicant has provided an employment contract and payslip for one of its Australian citizen employees with similar skills and experience and performing similar work to the nominee. The Tribunal has considered this information together with the evidence of Ms Fuller at the hearing which demonstrate that the nominee’s salary is commensurate with that of the salary offered to Australian citizens or permanent residents, performing similar work and with similar skills and experience.
Based on the information before it, the Tribunal is satisfied that the AMSR for the nominated occupation has been determined by the Company by reference to IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the AMSR exceeds the TSMIT of $53,900 per annum and accordingly finds that the requirements in reg 2.72(15)(d) are met.
Having regard to the contract of employment and updated contract of employment, the Tribunal finds that the nominee’s annual earnings of $85,000 per annum plus superannuation will not be less than the AMSR and therefore, the requirements of reg 2.72(15)(e are met. It further finds that the nominee’s total earnings, as evidenced by the updated contract of employment, exceed the TSMIT and therefore, the requirements of reg 2.72(15)(f) are met.
Accordingly, for the reasons outlined above, the requirements of reg 2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The terms and conditions of the nominee’s updated employment contract are consistent with the standard provisions relating to leave and termination in the Fair Work Act 2009 (Cth) and National Employment Standards. There is no information before the Tribunal to indicate that the employment conditions that apply to the nominee are less favourable than those would apply to an Australian citizen or permanent resident. There is no information to indicate that the applicant has engaged in discriminatory recruitment practices.
The Tribunal is therefore satisfied that reg 2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that 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 (LMT) 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 LMT condition, the testing must be undertaken within a prescribed period as set out in instrument LIN 18/036 Period, manner, and evidence of labour market testing Instrument 2018. 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 evidence of LMT 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.
The Tribunal has considered whether the LMT condition applies in this case and whether:
·It would be inconsistent with an international trade obligation specified in the relevant instrument IMMI 18/183: s140GBA(1)(c) of the Act; or
·The nomination is subject to the major disaster exemption, or the skill and occupational exemptions specified in the relevant instrument: s140GBB and s140GBC of the Act.
Having regard to the evidence before it, the Tribunal is satisfied the LMT condition applies in the case. There is nothing before the Tribunal to suggest it would be inconsistent with an international trade obligation specified in IMMI 18/183. There is currently no legislative instrument which prescribes a major disaster exemption or a skill and occupational exemption. Accordingly, the company must satisfy the LMT requirements set out in IMMI 18/036.
Part 2 of IMMI 18/036 sets out details of the period, manner and evidence required for advertising the nominated position. Evidence of these details must accompany the nomination when it is lodged with the Department. Section 6 of IMMI 18/036 states that the period within which the LMT must be undertaken is within the 4-month period ending on the day on which the nomination is lodged.
The applicant has provided the Tribunal with evidence of its LMT activities including job advertisements for the position of Restaurant Manager on the job recruitment platforms Seek.com and Indeed.com dated respectively 31 January 2020 and 6 February 2020. Having reviewed information in the Department’s file confirmed by Ms Fuller at the hearing, 18 applications were received in response to the Seek.com advertisement and 29 applications were received in response to the Indeed.com advertisement. However, none of them had the necessary skills and experience for the position. This was confirmed by Ms Fuller in her evidence during the hearing.
For these reasons, the LMT requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa). Departmental systems show the 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.
Amanda Mendes Da Costa
Member

ATTACHMENT A - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2024] AATA 933

19 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Appeal