MOURTERI PTY LTD (Migration)

[2024] AATA 191

MOURTERI PTY LTD (Migration) [2024] AATA 191 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MOURTERI PTY LTD

REPRESENTATIVE:  Mr Ki Young KIM (MARN: 1683672)

CASE NUMBER:  2109163

HOME AFFAIRS REFERENCE(S):          BCC2020/2380653

MEMBER:Alan McMurran

DATE:29 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2024 at 4:44pm

CATCHWORDS

MIGRATION – nomination of a position – Short-term stream – occupation nominated for a Café or Restaurant Manager – limited-service restaurant – inapplicability condition – business provides full table service with extensive menu – genuine and full-time position – employment conditions no less favourable – labour market testing – decision under review set aside      

LEGISLATION

Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, Schedule 2, cls 482.223, 482.232; rr 1.13, 2.57, 2.72, 2.73, 5.42

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 19 July 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 1 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).

2. The applicant, MOURTERI PTY LTD, t/as Café Leura, (the “nominator/sponsor”) applied for approval on 28 September 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.

3. 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.

4. 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.

5. The nominee, Mr. Yanto Tan, a 43-year-old citizen of the Republic of Indonesia (“the nominee”), is already the holder of a Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa, granted on 7 August 2023 in the Employer Sponsored stream, working for the applicant as nominator, and at the same location at Leura in NSW and in the same nominated occupation.

6. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream for up to 2 years. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(8) because a caveat for the occupation was applicable.

7. The relevant caveat[1] specifies that the occupation nominated for a Café or Restaurant Manager (ANZSCO 141111) (“the nominated occupation/occupation”) is not applicable to a limited service restaurant. The delegate found on the available information that the business conducted by the applicant was a limited service café which “does not offer full table service” based upon the 4 photographs submitted with the application.  

   Information for this review

   [1] LIN 19/048

8. On 30 October 2023, the applicant responded to a Tribunal request made on 16 October 2023 under s 359 of the Act and provided updated information and further multiple documents in support of the review. The applicant was represented by a registered migration agent.

9. The representative has informed the Tribunal that the nominee, who was granted a Subclass Regional (Provisional) 494 visa noted above, separately approved, and for the same nominated occupation and working for the applicant at the same location, wishes to proceed with the review of the visa refusal, together with the applicant. The representative asserts as does the nominee that both the applications should have been approved and asks for the current decisions to be set-aside.

10. In order for the nominee to succeed there must be an approved nomination. The Tribunal has proceeded with the reviews for both the applicant and the nominee separately and as requested by the representative.

    Decision

11. Having considered all the available information and submitted documentation as provided and updated for the review, the Tribunal formed the view that it could finalise the nomination review favourably for the applicant and without a hearing, in accordance with s 360(2)(a).

12. For the following reasons, the Tribunal has decided to set aside the decision and substitute a decision approving the nomination.

    Background

13. The applicant conducts a café business styled “Leura Café” at Leura Mall in the Blue Mountains, NSW. Previously, the business was conducted as “Loaves and Dishes Café” at the same address.

14. The nominee was employed in May 2018 by the applicant in the nominated occupation on a Subclass 457 visa and in the nominated occupation. The nominee has remained in the applicant’s employment in the nominated occupation as at the time of the review, for a period of almost 6 years.

15. The related visa application[2] by the nominee is reviewed separately[3] after this decision on the nomination. The visa application includes family members. The Tribunal has had regard to all the information in both the Department’s nomination file for the applicant and the related visa application file.

    [2] BCC20202384162

    [3] Tribunal case 2111514

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the criteria for approval of the nomination.

17. 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.

18. The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions and documents from the representative. The information includes material which was not before the Department.

19. The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines as well as information generally available from researching the Internet.

    The nomination must comply with the prescribed process

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

21. On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code[4] under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Short-term stream[5]. The nominee is nominated to work in the nominated occupation.

    [4] Café or Restaurant Manager (ANZSCO 141111)

    [5] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Café or Restaurant Manager (ANZSCO 141111), and which includes a caveat that the occupation is not a ‘limited service restaurant’, as defined in the instrument.

22. The Tribunal is satisfied from the Departmental information that the application was made on the approved form, the fee paid together with any nomination training contribution charge applicable, and collected from the applicant in accordance with the current requirements for payment as assessed by the Department at the time of lodgement.

23. The nomination includes the proposed period of stay for a visa granted on the basis of the nomination in the Short-Term stream (up to 2 years), and the applicant’s declared annual turnover calculated for the financial year submitted.

24. The Tribunal finds that the application identifies the applicant as a standard business sponsor for the 5-year period from 16 September 2020 to 16 September 2025 and includes the following certifications:

    a.the relevant 6-digit occupation code for Café or Restaurant Manager (ANZSCO 141111), with the name of the occupation, identifying the nominee in the nomination.

    b.the principal location at the premises at Leura in the Blue Mountains, West of Sydney, where the occupation is carried out.

    c.the applicant’s turnover, estimated at the time of application at less than AUD 100,000.

    d.the applicant has not engaged in conduct that contravenes s 245AR (1) of the Act relating to paying for visa sponsorship or a sponsorship-related event.

    e.the nominee’s employment contract (updated as at 28 June 2023), complies with Commonwealth, State, or Territory employment laws.

    f.the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of Café or Restaurant Manager, and the qualifications and experience of the nominee are commensurate with those specified for the occupation in accordance with the relevant instrument. [6] 

    g.The occupation is not specified in accordance with the relevant instrument [7], which might otherwise exempt it from any additional requirements, and so includes certification that the nominated position is with the applicant’s business located in Australia and not with any overseas employer or an associated entity.

    [6] IMMI 19/048

    [7] IMMI 18/035

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

    No adverse information known to Immigration

26. 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.

27. At the time of decision, the Tribunal finds there is no adverse information known to the Department or the Tribunal, about the applicant or a person associated with the applicant.

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

    Nominator is a standard business sponsor

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

30. Department records have confirmed that the applicant is a standard business sponsor for the period from 16 September 2020 to 16 September 2025.

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

    Payment of debt mentioned in s 140ZO

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

33. There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO of the Act, and which has not been paid in full.

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

    Requirements for existing Subclass 457 or Subclass 482 visa holders

35. 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).

36. The nominee is not the holder of a Subclass 457 or Subclass 482 visa and there are no current family members of the nominee who hold a Subclass 457 or Subclass 482 visa as a family member of the nominee.

37. 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

38. This is the provision which troubled the delegate, who at the time of the decision, was relying upon the impression gained from 4 photographs of the premises submitted by the applicant.

39. 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/LIN19/048 compilation. The occupation must also apply to the nominee in accordance with the instrument.

40. The applicant has specified the nominated occupation, Café or Restaurant Manager (ANZSCO 141111), which corresponds to an occupation in the relevant compilation instrument LIN19/048.

41. The occupation is subject to an inapplicability condition which limits its availability for nomination if it is located in a ‘limited service restaurant’. The phrase is a defined term in the instrument which sets out that a ‘limited service restaurant’ includes the following:

    (a) a fast food or takeaway food service;

    (b) a fast casual restaurant;

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

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

    (e) a limited service pizza restaurant .

42. The Tribunal has considered the available information and recent submissions from the applicant. The Tribunal has also considered Policy guidelines from the Department which note that sponsored skilled visa programs are not considered appropriate to fill positions in a café where only a limited food service is provided, such as coffee shops or mall cafes – with such positions generally lesser skilled and considered able to be sourced from the local labour market. Other indicia include a primary focus on coffee shop service, takeaway and limited food menus which involve minimal preparation and a small kitchen operation. Another ‘key factor’ is the way in which food is ordered, served, and where consumed, or in a primarily ‘self-service’ ordering environment with service limited to behind the counter.

43. The information provided for this review demonstrates the applicant’s business provides full-table service where ordering and service takes place at table. Meals are prepared in a commercial kitchen environment after ordering, and customers wait seated at their tables. Payment is made on completion of the meal, while seated, not at the counter, and not beforehand. The menu demonstrates a varied meal offering from an extensive menu. The venue provides a booking service for patrons and on-site functions. The business is well-established and provides dining facilities for regular patrons as well as a large volume of visitors to the Blue Mountains. The Tribunal has had regard to the recent financial information demonstrating turnover for the 4^th quarter FYE June 2023, showing sales revenue of $739,117.00 for the quarter. The information includes the most recent organisation chart with a staffing roster of 26 persons. This includes 13 casual wait-staff who are all Australian citizens, and 1 permanent resident from the local area. There are 4 visa holders on the roster, which includes the nominee and 2 full-time cooks on Subclass 482 visas. The head chef is one of the proprietors and who is an Australian citizen.

44. The Tribunal has had regard to the nominee’s description of the role, and his current work experience with the applicant at the location over several years, and the fact he has been accepted for the same role on at least two prior applications by the nominator at the same venue. There is no information that the role has changed over time or is not currently the same role performed by the nominee. There is no information that the applicant’s business has contracted or changed in terms of its service model as at the time of this review. The information is that it continues to operate the business as previously and has increased its turnover.

45. The Tribunal finds it is satisfied on the available information that the business is not ‘limited’ to a fast food or takeaway food service, or fast casual restaurant, and similarly is not a drinking establishment that offers only a limited food service. It is not a limited service pizza restaurant. The restaurant is located in or on the corner of Leura Mall, a main street in the locale for tourists visiting the Blue Mountains and catering for pedestrian traffic as well as those visiting and parking nearby.

46. Taking all the information available into account, the Tribunal finds it is satisfied that the occupation applies to the nominee in accordance with the instrument, and that the nomination is not caught by the applicable caveat in this instance.   

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

    Position must be genuine and full-time.

48. 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.

49. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

50. The Tribunal finds that there is no issue nor any evidence before it to the effect that the position in this instance is not full-time, as evidenced by the submitted signed contract of employment[8], which remains current at the time of this review and specifies a 38-hour working week, at an annualised salary of $72,500.00pa.

    [8] Updated as at 28 June 2023, effective from 1 July 2023.

51. The Tribunal has had regard to the nominee’s submitted statement setting out his work role and duties. ANZSCO summarises the roles of café and restaurant manager as persons who “organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.” Tasks for the role are described as:

    ·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 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.

52. The analysis of whether the job role is ‘genuine’ involves consideration in this instance whether the applicant is ultimately doing a majority of those things required for the job role, and which do align with the tasks as guided by ANZSCO.[9]  The available information discloses nothing controversial with the role nominated in the applicant’s business and which generally aligns with the ANZSCO description. The applicant has set out the job role and tasks associated in a statement from the business owner and separately from a narrative description provided by the nominee himself. The Tribunal is satisfied having regard to that information aligned against the ANZSCO guide and the nominee’s acquired skills and training and his experience with the applicant to date, that the position as performed by the nominee and described by him is genuinely that of a café and restaurant manager. The Tribunal finds that on any reasonable qualitative analysis, the nominee is performing a majority of the tasks for the nominated role.

    [9] Department policy considerations  - PAM 3 – TSS nominations at 4.5.7

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

    Employment under contract

54. 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/LIN19/212.

1. 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 occupation further is not specified (as exempt) in the relevant instrument.

2. The Tribunal finds on the available information that the applicant has produced a written contract of employment signed by the nominee and the applicant and dated 28 June 2023.

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

   Annual earnings

4. 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 IMMI18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

   ·the annual market salary rate (the AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI18/033: 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 IMMI18/033 (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).

5. As the annual earnings in relation to the occupation will not be at least the specified amount ($250,000.00), the requirements of reg 2.72(15) must be met.

6. The current salary for the nominee is $72,500.00pa. As the applicant’s annual salary for the nominated occupation equals or exceeds the AMSR (averaged at between $70,000.00 - $75,000.pa)[10] by reference to advertised similar positions for the role and by reference to the relevant industrial instrument[11], the Tribunal finds it is satisfied for these reasons that the requirements of reg 2.72(15)(c) are met.

   [10] Jora Australia website information

   [11] Restaurant Industry Award 2020 (as at Nov 2023)

7. The Tribunal further finds that the rate for the occupation is not less than the TSMIT threshold of $53,900 specified in IMMI 18/033. For this reason the requirements of reg 2.72(15)(d) are met.

8. For the reasons given above and relying upon the provided industry and occupation evidence for the role of Café or Restaurant Manager, the Tribunal is satisfied that the requirements in the legislative instrument,18/033, as to the method of determination of the annual market salary rate have been followed. For these reasons the requirements of reg 2.72(15)(e) are met.

9. The Tribunal has found that the nominee’s earnings for the position in relation to the nominated occupation are not less than the TSMIT minimum of $53,900 as specified. For these reasons the requirements of reg 2.72(15)(f) are met

10. There is no information before the Tribunal to indicate that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. The evidence submitted shows the nominee is paid a salary towards the middle of the market as at the time of review and concludes for these reasons that the requirements of reg 2.72(15)(g) are met.

    Employment conditions

11. 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.

12. 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.

13. The Tribunal has examined the nominee’s proffered employment contract and had regard to the evidence about his employment terms and conditions. The Tribunal finds that there is no information that indicates the nominee’s employment conditions (earnings considered separately) will be less favourable than those for the Australian equivalent.

14. The nominee’s employment contract relied upon is a standard agreement which includes statutory requirements required by the Fair Work Act (Cth) and State provisions for holiday pay, and accrued sick leave and compassionate leave and would be expected to be the near equivalent of a ‘standard’ employment agreement for the occupation.

15. The phrase “discriminatory recruitment practices” is not a defined term. The Tribunal finds there is no evidence before it that the applicant has engaged in any discriminatory recruitment practices, based on the available information and applying the language of the expression in accordance with its ordinary meaning and by reference to the evidence of the contract proffered to the nominee.

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

    Labour Market Testing

17. 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).

18. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036 compilation No 2. 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.

19. 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 IMMI18/036.

20. In this instance, Australia does not yet have an applicable international trade obligation determined in the relevant instrument, IMMI18/058.

21. The Tribunal also finds that the nomination is not subject to the major disaster exemption or the skill and occupational exemptions in the relevant instrument IMMI18/058– s 140GBB and s 140GBC of the Act – and which instrument has been repealed.

22. The Tribunal has had regard to the labour market testing condition and on the available information provided, including the submitted advertising material as provided to the Department, finds that in accordance with the relevant instrument 18/036:

    o   labour market testing has been undertaken in the specified period and for at least 4 weeks from 3 July 2020 to 2 August 2020; 28 responses were received and recorded.

    o   labour market testing was undertaken in the manner prescribed using English language advertisements, on recruiting websites with national reach including Jobactive, as approved, commissioned and authorised by the sponsor, including the description of the position, title, sponsor’s name and advertised salary for earnings less than $96,400.00pa, and for the required duration;

    o the nomination application itself to the Department was accompanied by evidence of the labour market testing – ss 140GBA(3)(b)(i) and (6A);

    o there were no suitable qualified and experienced Australian citizens, permanent residents or eligible temporary visa holders readily available to fill the nominated position – s 140GBA(3)(d); and

    o no Australians or permanent residents were made redundant/retrenched before or after the LMT testing period – s 140GBA(4A).

23. For these reasons, the labour market testing requirements in s 140GBA are met.

    Nomination training contribution charge

24. 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).

25. 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 applicant in this instance is liable to pay the charge, the application having been made on 28 September 2020.

26. The Tribunal is satisfied on the available information that the Department has collected the charge on lodgement of the application on 28 September 2020, and which has been receipted for the applicant on the date of filing, and which amount includes the SAF levy as calculated for the application.

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

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

    DECISION

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

    Alan McMurran
    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)…