NEOSTECH PTY LTD (Migration)

NEOSTECH PTY LTD (Migration) [2024] AATA 352 (5 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NEOSTECH PTY LTD
REPRESENTATIVE:  Mr Jeffrey Jonghyon Sohn
CASE NUMBER:  2303264
HOME AFFAIRS REFERENCE(S):          BCC2023/301928
MEMBER:Alan McMurran
DATE:5 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 05 January 2024 at 11:32am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – specified occupation – ICT Customer Support Officer – Computer Network and Systems Engineer – applicant and nominee specified two different occupations – genuine position – no response to s.359 invitation – ANZSCO’s description – job description in the nominee’s employment contract – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 8 March 2023 for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2023 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, NEOSTECH PTY LTD, formerly trading as Neost Pty Ltd[1], applied for approval on 17 January 2023. 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.
[1] Letter of 8 March 2023 from the representative refers
The nomination was lodged for the occupation of ICT Customer Support Officer (ANZSCO 313112) by the nominator. 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 Medium-term stream, said to be for a period “up to 2 years”[2].
[2] Department application lodged 17 Jan 2023 at p4 of 16
The delegate decided not to approve the nomination on 20 February 2023 on the basis that the applicant did not satisfy r 2.27(10)(a) of the Regulations because the position associated with the occupation was not ‘genuine’.
The nominee, Mr Heeseop Chang, a 40 year-old citizen of the Republic of South Korea lodged a related TSS Subclass 482 visa application for the occupation of Computer Network and Systems Engineer (ANZSCO 263111)[3].The nominee’s related visa application was subsequently refused on 11 October 2021 because the nomination had not been approved and cl 482.212 was not met by the nominee. The nominee has sought review of the visa refusal. The nominee’s review application remains under consideration by the Tribunal in separate review proceedings[4].
[3] ANZSCO 263111 is a different occupation to that nominated by the applicant
[4] Tribunal case 2114658
The applicant was represented in relation to the review by a legal practitioner.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
No Hearing
On 16 October 2023, the Tribunal invited the applicant to provide updated information under s359(2) of the Act, concerning the nomination and the proposed role and employment of the nominee. The applicant was invited to respond by a due date, 30 October 2023, or seek an extension if more time was needed. The applicant was informed that failure to respond by the due date, or any agreed extended date, would result in the applicant losing its entitlement to appear in the Tribunal to give evidence and present arguments.
The applicant did not respond in time, or at all, and made no request for an extension of time to provide further information. No explanation has been provided for the failure to respond as invited.
As the applicant had not responded before the time for giving the information had passed, s359C of the Act applies and the Tribunal may make a decision without taking any further action to obtain the information sought. Section 360(3) of the Act further mandates that the Tribunal has no power to permit the applicant to appear.[5]
[5] Hasran v MIAC [2010] FCAFC 40
The Tribunal has given consideration whether nonetheless in the exercise of its discretion it should defer further consideration of the review, although no such request has been made, and adjourn the review pursuant to s 363(1) of the Act.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[6] and Manna v Minister for Immigration and Citizenship[7], where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.
[6] [2002] FCA 617.
[7] [2012] FMCA 28.
It has also had regard to Minister for Immigration and Citizenship v Li [8] regarding the issue of ‘reasonableness’ when considering an adjournment, and the Full Federal Court of Australia decision in Minister for Immigration and Border Protection v Singh [9] which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection[10].
[8] [2013] HCA 18 (8 May 2013).
[9] [2014] FCAFC 1 (4 February 2014).
[10] [2014] FCA 915 (28 August 2014).
Relevantly, the courts have confirmed that the decision in each instance will depend upon the particular facts and circumstances of the case. The Tribunal has not been made aware of any particular fact or circumstance in this instance which might explain the non-response of the applicant (and the nominee) or which might warrant further consideration of an adjournment.
The Tribunal is aware of its obligation to act reasonably and as the courts have emphasised, so as to balance the need for procedural fairness with the Tribunal’s objective to provide a mechanism for review that is fair, informal, just, economical and quick.
The Tribunal has waited since 1 November 2023 until 4 January 2024 to complete the review and has heard nothing further. The applicant has not provided any information to update the nominator’s circumstances, or to explain why the delegate’s decision was wrong and should be set aside.
Considering the absence of the requested information and where no attempt has been made to update the Tribunal since lodgement on 8 March 2023, and where no extension of time has been sought by the applicant or anyone on its behalf, the Tribunal considers this is not a case where the exercise of its discretion to adjourn the review from time to time is warranted.
The Tribunal instead has determined it should now proceed to complete this review, without further delay.
The issue
The issue in the present case is whether the applicant meets the criteria in r 2.72 of the Regulations for the nomination to be approved.
If any of the mandated criteria is not met, the Tribunal is not obliged to consider any remaining criteria not otherwise reviewed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions from the representative.
The Tribunal has also had regard to the Act and the Regulations[11], 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
[11] S140GB and reg 2.72
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 19/048 (“the relevant instrument”).
The occupation must also apply to the nominee in accordance with the relevant instrument.
In this instance, the nomination is for the occupation of ICT Customer Support Officer (ANZSCO 313112), said to be by the nominator for a period up to 2 years.
The relevant instrument places the occupation in the Short Term Strategic Skills List which is for a period of stay up to 2 years, or up to 4 years if an International Trade Obligation (ITO) applies. Currently, there is in place the Korea - Australia Free Trade Agreement which is a designated ITO in the instrument LIN 18/183, which means the nominee could remain in Australia to work for up to 4 years on an approved visa.
The nominee in his related TSS Subclass 482 visa application has nominated a different role naming the occupation of Computer Network and Systems Engineer (ANZSCO 263111). This occupation is listed in the relevant instrument in the Medium Term Strategic Skills List, which provides for a stay in Australia to work for up to 4 years.
Two occupations
The nomination cannot be approved for two separate occupations, and it is not the case here that the nomination application seeks to do so.
Approval for the role nominated in this case does not correlate with the role sought by the nominee in his visa application, and where it is a requirement that the occupation as nominated must be the occupation which applies to him. A role differently specified by the nominee cannot be the role which the applicant nominator seeks to specify for him.
It is possible the applicant and the nominee made a mistake when considering which role applies. It is not clear why the specified occupation has been selected differently by the applicant and by the nominee for the related applications. No explanation has been suggested and no attempt has been made to correct the information.
In reviewing the available information from the Department, the Tribunal notes that the applicant’s employment contract with the nominee executed by both parties on 25 January 2023 specifies the position as “ICT Customer Support Officer” (the position nominated) not “Computer Network and Systems Engineer” as specified by the nominee.
The Tribunal could find no reference anywhere in the available information for the nomination that makes any reference by the applicant to the occupation sought by the nominee.
The delegate adopted a different approach and analysed the nominated occupation for genuineness against the limited information available and having regard to the scale and context of the business which only commenced in 2020 according to the ASIC record provided. The delegate considered that the information did not demonstrate that the position nominated fits within the applicant’s business structure which the delegate found had not been adequately detailed or explained.
Does the nominated occupation apply to the nominee in accordance with the relevant instrument?
The Tribunal on review can only consider the occupation as nominated, for the role of ICT Customer Support Officer (ANZSCO 313112). That occupation corresponds to an occupation and 6-digit code specified in the relevant instrument, and the application meets the requirement in r 2.72(8)(a) in that regard.
Sub-regulation 2.72(8)(b) requires additionally that the occupation “applies to the nominee” in accordance with the instrument. That requirement is prescribed and cannot be avoided.[12] The phrase applies to the nominee is not defined and must bear its ordinary meaning. The occupation as nominated by the applicant must “apply” to the nominee. The Tribunal interprets that to mean that the occupation nominated is also the occupation for which the nominee intends the related visa will apply.
[12] Regulation 2.72(2) for the purposes of paragraph 140GB(2)(b) of the Act
On the basis of the current information, the occupation as nominated is different to the occupation specified by the nominee[13] in his application and because it is a different occupation, on its face, the nominated occupation does not “apply” to the nominee and cl. 2.72(8)(b) is not met.
[13] ANZSCO 263111 – noting this occupation is listed in the relevant instrument under a different stream (medium term) to that of the nominated occupation (short term); both occupations cannot ‘apply’ to the same position and are different occupations evidenced by their ANZSCO definitions and streams as listed in the relevant instrument.
As the nominated occupation does not correspond to the occupation specified by the nominee, the related visa application for the different occupation (Computer Network and Systems Engineer) could not succeed as there would be no approved nomination for that occupation. It would follow that the applicant would not be able to employ the nominee in the role specified by the nominee.
Ordinarily, the Tribunal is of the view that is sufficient to dispose of the application as cl. 2.72(8)(b) is not met.
The Tribunal is mindful that the delegate refused the nomination for a different reason under r 2.72(10)(a) and considers it should address the issue raised by the delegate’s decision as that was the question also raised for this review.
The choice of different occupations by the applicant and the nominee raises a question of fact as to which role the nominee will be performing. Although the nominee has named a different occupation in his visa application the Tribunal is concerned in this review only with the nomination and it may be that the nominee is in fact performing the role as nominated, despite his description otherwise.
The issue is considered below in deciding whether the position nominated is ‘genuine’ and where the Tribunal must have regard only to the role nominated and the associated tasks for that role as outlined in ANZSCO’s description.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. The phrase is not defined and in the absence of a hearing the Tribunal is assisted in its task to help determine what might be ‘genuine’ from what information is available and from court authority which has frequently considered the issue.
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, by comparing specific tasks performed and described, and as outlined by ANZSCO, against the occupation nominated, in order to determine whether it was genuine. This means an assessment of not only whether the position in question actually exists, but also whether that position really is what it purports to be.
The Courts have confirmed that the determination necessarily requires a qualitative analysis of the position, and a comparison of that with the occupation which has been nominated by the proposed sponsor.[14]
[14] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34] (“Cargo”)
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 nomination application asserts that the nominee’s employment as an ICT Customer Support Officer- Network Support Technician[15] commenced on 1 October 2020. The applicant’s offered employment contract on the available information, although executed on 25 January 2023 by the parties, has left the commencement date blank, intending that the employment will only commence when a related visa is approved.
[15] Nomination application at p4
No agreement or document such as a payslip is provided evidencing the nominee’s claimed commencement date in October 2020 or his current employment at the time of this review (2024). A certificate from a previous employer, IRS & DMGT Pty Ltd, dated 3 March 2020, is produced and which refers to the nominee then employed since 1 October 2019 and “currently”.
The Tribunal finds the evidence of full time employment is unsatisfactory and does not establish that the nominee’s employment by the applicant will in fact be “full time”, based only on the provision in the proposed employment contract. This is because his current employment is unknown, which includes his hours of work, salary and performance obligations for the applicant, and because there is no financial information produced which demonstrates wages paid for work performed, the hours worked, what that work entails and to corroborate where and when it is performed or will be performed.
ANZSCO describes the nominated occupation in the following terms:
3131 ICT Support Technicians
ICT Support Technicians provide support for the deployment and maintenance of computer infrastructure and web technology and the diagnosis and resolution of technical problems.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
- AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience and/or relevant vendor certification may substitute for the formal qualifications listed above. In some instances relevant experience may be required in addition to the formal qualification.
Tasks Include:
- determining software and hardware requirements to provide solutions to problems
- responding to inquiries about software and hardware problems
- adapting existing programs to meet users' requirements
- installing and downloading appropriate software
- ensuring efficient use of applications and equipment
- implementing computer networks
- designing and maintaining websites
- repairing and replacing peripheral equipment such as terminals, printers and modems
- may work in a call centre
Occupations:
- 313111 Hardware Technician
- 313112 ICT Customer Support Officer
- 313113 Web Administrator
- 313199 ICT Support Technicians nec
313112 ICT Customer Support Officer
Alternative Titles:
Provides support, education and guidance in the deployment and maintenance of computer infrastructure and the diagnosis and resolution of technical problems and issues. May work in a call centre.
Skill Level: 2
Specialisations:
- ICT Help Desk Officer
- ICT Help Desk Technician
- Systems Support Officer
- Network Support Technician
- Operator Command Support Systems (Army)
By way of comparison, the role and tasks for the nominee’s specified occupation of Computer Network and Systems Engineer 263111 are described in ANZSCO thus:
2631 Computer Network Professionals
Computer Network Professionals research, analyse and recommend strategies for network architecture and development, implement, manage, maintain and configure network hardware and software, and monitor and optimise performance, and troubleshoot and provide user support.
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
- analysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems
- researching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance
- assessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems
- providing specialist skills in supporting and troubleshooting network problems and emergencies
- installing, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations
- providing network programming in support of specific business needs and requirements
- preparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions
- monitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance

The Tribunal has already noted that the nomination applies only to the first-described role of ICT Customer Support Officer. It is clearly the lesser of the two occupations in terms of qualifications and experience and may involve the nominee working as a support technician for a customer’s network.
Without the benefit of a hearing, the Tribunal has been unable to discuss with the applicant the role that will be performed against the tasks envisaged for the role, and what tasks he will actually be performing. The Tribunal has been unable to carry out the qualitative assessment that the courts have determined is the preferable approach to deciding the issue.
Resorting to the job description in the nominee’s employment contract, the Tribunal finds that the tasks there described to be performed for the applicant’s role include tasks described for both the occupations identified above. According to the signed employment agreement, the nominee would be performing general network tasks such as managing “software and hardware upgrades” as well as more complex tasks such as “providing network programming in support of specific business needs and requirements” and “installing, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations.”
The Tribunal cannot make the case for the applicant and it is for the nominator to demonstrate what work will be undertaken, where, when, how, and for whom. The Tribunal is not satisfied that such information as is available illustrates the role of an ICT Customer Support Officer and as described by ANZSCO, or that it aligns with the majority of tasks for the role and as described by the employment contract itself. Reviewing the employment contract as provided in this instance is not a substitute for a detailed qualitative analysis which is the preferred approach.
Despite the Tribunal’s recent request for information, which asks for details of the applicant’s organisation and staffing, position titles, and performance duties, no information has been provided. Nor was any response made to the request to provide a description of duties and responsibilities for the nominated occupation, and how they fit within the structure of the business. No written or document description has been provided to allow a comparison and objective analysis of what work the nominee will actually perform against the anticipated nominated role as described in ANZSCO referred to above.
The Tribunal has considered the available information. The Tribunal has no information from the applicant currently upon which it might determine on a qualitative assessment whether the nominee is performing the tasks associated with the occupation at the time of its decision. On the available information, the Tribunal is unable to compare the work, if any, performed by the nominee in the nominated role as against the tasks described by ANZSCO.
The Tribunal finds that it has not received information from any person authorised to do so at the time of its decision concerning the nominee’s current position in the applicant’s business, and relevant to any duties or tasks undertaken by the nominee, or whether in fact the nominee is still employed, and under a signed and written contract of employment engaging the nominee on a full-time basis.
The information available to the Tribunal has not been updated and was unable to be tested in a hearing where questions can be asked and answered concerning the nominee’s role, his level of experience, how he came to be selected by the applicant, and why the nominee had specified a different role to that sought by the applicant in the nomination application.
The Tribunal finds for these reasons that it is not satisfied that the position associated with the nominated occupation is ‘genuine’ in the Cargo sense.
Summary
On the basis of what is available and what was before the delegate, the Tribunal finds that the information does not sufficiently particularise factual details upon which a reasonable conclusion might objectively and qualitatively be made about what the position actually involves, and whether it is what it purports to be and is really that of an ICT Customer Support Officer.
Despite the opportunity when invited to do so, the applicant has not provided updated and current information about the nominee and the role.
In summary, the Tribunal finds that the nominated position is not shown to be that of an ICT Customer Support Officer, is not shown to be a full-time role for future employment, and further does not apply to the nominee who himself claims the role is that of a Computer Network and Systems Engineer which is not the occupation nominated.
For these reasons the Tribunal finds that the requirements of reg 2.72(10) are not met.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
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)…

[2024] AATA 352

5 January 2024

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

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