Metallix Homes Pty Ltd (Migration)

Metallix Homes Pty Ltd (Migration) [2022] AATA 1984 (21 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Metallix Homes Pty Ltd
CASE NUMBER:  1903217
HOME AFFAIRS REFERENCE(S):          BCC2018/5390937
MEMBER:Stephen Witts
DATE:21 April 2022
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 21 April 2022 at 11:34am

CATCHWORDS
MIGRATION–nomination – contract administrator – nominee is genuinely carrying out the full duties and responsibilities of a contract administrator – applicant was approved as a standard business sponsor – genuine need for the nominator to employ a paid employee –decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73
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 24 January 2019 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 1 December 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 to work in nominated occupation of contract administrator ANZSCO code 511111.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub regulation 2.72(10) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The applicant, Ms Rajni Bala from Metallix Homes Pty Ltd, appeared before the Tribunal on 21 April 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Mr Paras Batra and a witness, Mr Dipak Patel, Construction Manager.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the delegate’s decision record dated 24 January 2019 by the applicant where it was stated that the delegate was not satisfied that the position of contract administrator associated with the nominated occupation was genuine. The delegate noted that the nominee was a cousin of the director and also referred to concerns regarding the immigration history of the nominee and in particular referred to the fact that in October 2018 a previous 482 short-term nomination was made for the nominee by the applicant which was rejected in November 2018 and that in December 2018 another application was made which was also rejected. The delegate stated that it was not satisfied that the primary purpose of nominating this position was to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage.
The Tribunal notes that the applicant has provided it with financial and company extract material, copies of invoices and licenses, BAS statements, annual market salary rate comparisons, an organisation chart, visa information, English language proficiency information, pay slips for the nominee, and other information.
According to this information the applicant is a construction business based in Sydney. Primarily a homebuilder the business is involved in construction and building services specialising in single and double story dwellings. It was stated that Ms Rajni Bala is the director with 100% shareholding, that the company was incorporated in 2013, and that its organisational structure consists of the director as above, a part-time accountant who was an Australian citizen, a construction manager who is an Australian citizen, a site engineer who is an Australian citizen, a project manager who is an Australian permanent resident and the nominee.
It was stated that the nominee works as a contract administrator in charge of planning and undertaking administration duties such as administration of contracts, organisational programs, special projects and support services. It was stated that the qualifications and skills necessary for this role are associate degree or appropriate diploma or advanced diploma and at least three years of experience that may substitute for the above formal qualifications.
It was stated that the tasks of the position include:
“Developing, reviewing and negotiating pricing and variations to contracts,
projects, services and programs.
- Resolving contract-related problems, responding to inquires as well as
resolving issues related to programs, projects, service provided, and
persons affected.
- Monitoring and managing paperwork associated to programs, contracts,
projects and services provided by the organisation.
- Collaborating and working closely with Project Managers, Architects,
Engineering Professionals, contractors, owners and other stakeholders in order to Overseeing work done by contractors, reporting on variations and advising
senior management on matters that require urgent attention.
- Preparing and reviewing submissions and reports, collecting and analysing
data and reporting on project outcomes.
- Reviewing and arranging new office accommodation.”
In regard to the need for the position it was stated that the organisation critically needs a skilled and qualified contract administrator, that this is a newly created position which is consistent with the needs of the business and that the position is needed due to the large number of different contractors who are hired to work on the company’s projects over time. It was further stated that the organisation has a critical need for such a position to join their team on a full-time basis and that the demand for skilled and qualified contract administrators in Australia is high. It was further stated that such a candidate would need to be proficient in Hindi and Punjabi to be able to liaise with senior management and all stakeholders.
In regard to labour market testing, it was stated that the position was advertised on 3 job portals, Indeed, Job Active and Jora, and attracted 176 applications but that none had the appropriate qualifications and necessary experience. It was stated that there were no suitable candidates for the contract administrator position.
The Tribunal further notes that it was stated that the nominee is currently on a bridging visa and that prior to this he held a visitor visa and that he has been working as a contracts officer since 1 April 2021 on a salary of $60,000 plus superannuation.
The Tribunal notes that in financial material provided it was stated that to the financial year ending 30 June 2021 the contract revenue of the company was approximately $2 million, that its total income was approximately $500,000 and its net profit was approximately $100,000. It’s wages and salaries cost were approximately $400,000.
In regard to a comparison of the duties and responsibilities of the position compared to the position description under ANZSCO code 511111 it was stated that:
“Compile, Develop, Review and Present Construction tenders and building contracts to clients
on behalf of the organization ‐ this is the same as ANZSCO Code point 1
2. Compile, Develop, Review and Present contracts relating to building work to subcontractors/
contractors ensuring compliance with NSW Workcover, safety laws and building
code of Australia and fair‐trading requirements ‐ this is the same as ANZSCO Code point 1
3. Review, Negotiate, Design and Process home and land package contracts with the
stakeholders‐ this is the same as ANZSCO Code point 1
4. Organize documents related to contracts ‐ this is the same as ANZSCO Code point 3
5. Liaise, Communicate and Discuss contracts with the conveyancers and solicitors
6. Issuing variations, managing time extensions and establish delivery schedules ‐ this is the
same as ANZSCO Code point 6
7. Ensuring contracts meets the legal, statutory authorities and building code of Australia
requirements
8. Report to management on contractual issues and solve day to day issues relating to
contracts‐ this is the same as ANZSCO Code point 2 & 7
9. Receive requests, obtain estimates, update records, initiate paperwork and follow up on
request for approval of work not previously covered in the contract, process and obtain
approval of contract changes ‐ this is the same as ANZSCO Code point 3
10. Responding to inquiries and resolving problems concerning contracts and services provided
with stakeholders ‐ this is the same as ANZSCO Code point 2
11. Interpret contract provisions to clients and help resolve claims and questions submitted by
the contractors
12. Resolving issues by reviewing contracts and recommend solution to expediently resolve the
disagreement ‐ this is the same as ANZSCO Code point 2
13. Advising Senior Management on matters requiring urgent attention and implementing their
decisions ‐ this is the same as ANZSCO Code point 5
14. Monitor compliance to contract requirements, ensuring all conditions are satisfied before
approval of the final invoice ‐ this is the same as ANZSCO Code point 6
15. Meticulously maintain all documents and records pertaining to purchase orders, contract
forms, documents and the proposals that complies with contractual terms and conditions
and record‐keeping practices ‐ this is the same as ANZSCO Code point 8 & 9
16. Work with project managers, architects, engineers, owners and others to make sure project goals are met-this is the same as ANZSCO point 4”
At the hearing the Tribunal had a discussion with the nominator and the nominee regarding the application.
The applicant stated that the business which she is the sole owner and director of has grown significantly over the last two years or so and that its turnover over the last 12 months has grown from $2 million worth of contract work to 3 to $4 million worth of work and that since the nominee was employed approximately 12 months ago she has been able to spend about 25% of her time on administering the contract relationships with her subcontractors rather than spending almost her whole time on managing her contractors which was the situation prior to the employment of the nominee. The Tribunal had a detailed discussion with the applicant regarding the process that was used to test the market for contract administrators noting to her that in fact the contract administrator that she employed was a relative on a visitor visa. The nominator stated that there were three shortlisted candidates from her advertising in September 2018 and that one of these was an Australian citizen but that the nominee was genuinely the best fit for the job considering his qualifications and work history in his home country and that the position is genuine.
The Tribunal had a detailed discussion with the nominator regarding these matters who gave evidence of the nature of the ongoing contractual work that she was still doing in the business and the activities being carried out by the nominee and the other activities that she had previously not been able to carry out appropriately, such as directly working with clients and business development generally, that she can now carry out because the nominee has been employed to carry out the duties and responsibilities of administrating and maintaining the contractual relationship as well as assisting as a “middleman” between the business and clients and potential clients regarding contractual and financial matters.
The nominee stated that he has a Bachelor of Commerce majoring in accounting gained back in his home country of India in 2012 and that subsequent to this he worked in a chartered accounting firm for 18 months in the role of auditing and bookkeeping administrator and that he then worked in a financial securities firm for some two years or so servicing clients, managing software, and working as a sales and contract consultant. He stated that he then worked in a bank for a year or so as a business relationship manager where he was involved in the negotiation of various financial contracts. He stated that he has various relatives here in Australia including the owner of this business, the nominator, and also various uncles, aunts, and cousins. He further stated that between September 2018 and April 2021 when he began work in the business that he had no paid employment as such, but he worked on a voluntary basis engaged in social service activity with his religious and community interests. He stated that he had been waiting to see what would happen with his attempts to find professional employment here, that he lived with his uncle and his family helped him financially. He stated that he recognised that previously he had had no direct construction experience but that he had spent significant amounts of his previous work life negotiating with clients regarding contractual matters and involved in legal compliance activities, and general finance and contract administration.
The Tribunal had a detailed discussion with the nominee regarding the circumstances of his arrival here in Australia as a visitor on a visitor visa. He stated that he did genuinely come to Australia in September 2018 as a visitor and that he did not resign from the bank that he worked at back in his home country but that once here he had discussions with the nominator and that they agreed that he could come and work in the business as a contract administrator as the business had recently grown and that Ms Bala needed assistance in this area and had had difficulty finding appropriate candidates in the sets of advertisements that she had placed for this role on three occasions in February, July, and September 2018.
The Tribunal has considered the evidence carefully and had a detailed discussion with the parties regarding the actual duties and responsibilities of the nominee and is satisfied that the nominee is genuinely carrying out the full duties and responsibilities of a contract administrator as outlined in ANZSCO code 511111 and reviewed above.
The Tribunal notes that it is concerned regarding the nature of the nominee’s arrival in Australia as a visitor and then his subsequent decision, he says, to look for professional employment here in Australia, and the Tribunal further notes that the nominator has stated, and provided evidence, that she has advertised and interviewed other potential applicants for this role, and that she has also stated that this was a genuine arrangement and not a contrived position to secure the nominee residence in Australia. The Tribunal’s concern regarding this matter though is outweighed by a detailed investigation of the nature of the position and the qualifications and experience of the nominee and that in particular the nominee does have the relevant qualifications for the position and that the position is genuine and being fulfilled in accordance with the duties and responsibilities covered by the relevant job description in ANZSCO code 511111. On that basis the Tribunal remits the matter back to the department for further consideration.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant as the person who will work in the occupation.
The nomination was made using the approved form and the fee has been paid. The applicant has identified Mr Paras Batra in the nomination. The nomination includes the location of the business, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of contract administrator (ANZSCO 511111).
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 rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.
For these reasons the requirements of r.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 provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved.
For these reasons the requirements of r.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 Tribunal is satisfied that there is no evidence that the applicant has any outstanding debt under s.140ZO.
For these reasons the requirements of r.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 r.2.72(6) and r.2.72(14) do not apply.
For these reasons the requirements of r.2.72(6) are met.
Further, the Tribunal was provided with evidence that the nominee satisfied the English language test requirements with an PTE score of 59 that was undertaken on 7 February 2022 and thereby the nominee satisfies the language test requirements in the relevant instrument that would apply as a nominee for a Subclass 482 visa in the Short-term stream, as applicable.
For these reasons the requirements of r.2.72(14) are met.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/051 Specified Occupations. The occupation must also apply to the nominee in accordance with the instrument.

The Tribunal is satisfied that IMMI 18/051, in force at the time of application, included the occupation of contract administrator– ANZSCO Code:511111.
For these reasons the requirements of r.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 in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant provided evidence through the recent contract of employment that the nominee will be employed as a full-time contract administrator – ANZSCO Code: 511111 and a contract salary of $60,000, plus superannuation.
The Tribunal also finds that the duties performed by the nominee, which were confirmed in evidence are consistent with the tasks and duties provided in ANZSCO Code: 511111.
For these reasons the requirements of r.2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/051. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)).
In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The applicant provided evidence through the recent contract of employment that the nominee will be employed as a full-time contract administrator– ANZSCO Code: 511111 on a salary of $60,000 plus superannuation.
For these reasons the requirements of r.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 r.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: r.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: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.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: r.2.72(15)(d) and r.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 r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.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: r.2.72(15)(f) and r.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: r.2.72(15)(g).
The Temporary Skilled Migration Income Threshold (TSMIT) is currently AUD53,900 and the nominee is contracted to be paid $60,000 for the nominated occupation of contract administrator– ANZSCO Code: 511111, which it was submitted is greater than the award rate.
Further, the Tribunal is satisfied that the wage rate for a contract administrator as prescribed in the Modern Award, is less than the salary of $60,000 that will be paid to the nominee by the applicant.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) does not apply.
For these reasons the requirements of r.2.72(18)(a) and r.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 s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
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: LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI: LIN – 18/036 that includes the following requirements:
“8        The advertisement of a nominated position
(1)    This section is made under subsection 140GBA(5) of the Act.
Language
(2)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.
Method
(3)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:
(a)    on a recruitment website with national reach in Australia; or
(b)   in print media with national reach in Australia; or
(c)    on radio with national reach in Australia; or
(d)   if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.
(4)    The following details of the position must all be included in the advertisement:
(a)    the title or a description of the position;
(b)   the skills or experience required for the position;
(c)    the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;
(d)   the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.
Duration
(5)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a)   print media;
(b)   radio;
(c)   website.”
The Tribunal is satisfied that the applicant has undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 that applied at the time of the engagement of the nominee, which was supported by evidence provided to the Tribunal prior to hearing. In this regard, the position of contract administrator – ANZSCO Code: 511111 was advertised for 4 week periods in appropriate national job portals which the Tribunal accepts are national distributed print media that satisfies the expressed criteria.
For these reasons, the labour market testing 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).
The Tribunal finds that this requirement has been met.
For these reasons the requirements of s 140GB(2)(aa) are met.
Concluding paragraphs
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.
Stephen Witts
Member

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

[2022] AATA 1984

21 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies