Newtrend I.T. Specialists Pty Ltd (Migration)

Newtrend I.T. Specialists Pty Ltd (Migration) [2022] AATA 2964 (29 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Newtrend I.T. Specialists Pty Ltd
REPRESENTATIVE:  Mr Daniel Estrin
CASE NUMBER:  1909768
HOME AFFAIRS REFERENCE(S):          BCC2019/1708961
MEMBER:Mary Sheargold
DATE:29 August 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 29 August 2022 at 5:14pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary skill shortage visa, medium-term stream, computer network and systems engineer – annual market salary rate – documentary evidence and submissions provided to tribunal – relevant award, and classification and salary of nominated position – labour market testing exemption – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), rr 2.57A, 2.72(15), 2.73
CASE
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 11 April 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 6 April 2019. 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 Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(15) of the Regulations because it did not present a justifiable explanation of the annual market salary rate (AMSR) for the nominated position of Computer Network and Systems Engineer, ANZSCO 263111.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
On 28 March 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated and current evidence demonstrating that the applicant met all of the criteria in r.2.72 of the Regulations and s 140GBA of the Act (not just the criterion that the delegate found was not met). The Tribunal provided examples of the kind of information that would assist it to assess whether the applicant met the r.2.72 and s 140GBA criteria, and requested that the applicant provide the information by 11 April 2022.
During the 14 day period in which the applicant was requested to provide the information, the applicant appointed a new authorised recipient. On 11 April 2022, the applicant’s new representative provided the following documents:
·brief written submissions dated 11 April 2022;
·a current and historical company extract for the applicant from the Australian Securities and Investments Commission (ASIC) dated 8 April 2022;
·current and historical extracts for the applicant’s Australian Business Number (ABN) from the Australian Business Register dated 6 April 2022;
·a copy of the applicant’s notification of approval as a standard business sponsor dated 25 March 2019, covering the period from 25 March 2019 to 25 March 2024;
·detailed financial statements for the applicant’s business for the financial years ending on 30 June 2019 and 30 June 2020;
·a profit and loss statement and a balance sheet for the applicant’s business for the financial year ending on 30 June 2021;
·copies of business activity statements (BAS) for the applicant’s business for from 1 July 2021 to 28 February 2022;
·copies of income tax returns for the financial year ending on 30 June 2019 and 2020;
·a position description for the nominated position;
·a copy of the nominee’s successful skills assessment dated 26 April 2021;
·a copy of the nominee’s most recent contract of employment, dated 5 October 2021;
·an organisational chart for the applicant’s business;
·a letter outlining the genuine need for the nominated position within the applicant’s business;
·copies of advertisements placed for the labour market testing (LMT) requirement set out in s 140GBA of the Act; and
·copies of the nominee’s previous visa grants and English language test results.
On 20 July 2022, the applicant’s representative provided a further submission and bundle of supporting evidence. Upon considering this most recent batch of submissions, the Tribunal invited the applicant to further comment on how it had determined the nominee’s salary obligations under the relevant Award. On 3 August 2022, the applicant’s representative provided further submissions regarding the determination of the nominee’s salary. The Tribunal has considered all of this documentary evidence and the documents contained in the Departmental file in reaching its findings.
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 is satisfied from its review of the Department’s file along with the representative’s submissions that:
·the applicant is nominating an occupation under s.140GB(1)(b) of the Act in relation to a proposed applicant for a Subclass 482 visa: r.2.73(1);
·the nomination was made using the approved form and was accompanied by the required fee: r.2.73(3), (4), and (5);
·the applicable training contribution charge was paid: r.2.73(5A);
·the nomination was made in the medium term stream as the nominated occupation of Computer Network and Systems Engineer, ANZSCO 263111, is a medium and long term strategic skills specified occupation in the relevant instrument, IMMI 18/048: r.2.73(6);
·the applicant identified the nominee, Mr Leonardo Silva De Quieroz: r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6 digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, and the annual turnover for the applicant: r.2.73(9);
·the nomination included written certification that the applicant had not engaged in conduct that contravenes s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt: r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that 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 has provided the Tribunal with a copy of its Notice of approval as a standard business sponsor issued to it by the Department on 25 March 2019. The approval ceases on 25 March 2024.
Therefore, the Tribunal finds that 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.
There is no evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
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 reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Computer Network and Systems Engineer, ANZSCO 263111, is specified in the medium and long term strategic skills list set out in IMMI 18/048. No inapplicability conditions are relevant to this occupation.
Therefore, the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The submissions and evidence before the Tribunal confirm that the position is a full time position, and that the nominee has worked in the position on a full time basis since 1 February 2020.
The Tribunal has reviewed the director’s updated statement regarding the genuine need for the nominated position of Computer Network and Systems Engineer in its information technology support business. The detailed evidence provided, coupled with the publicly understood skilled labour shortage in Western Australia, is sufficient to satisfy the Tribunal that the nominated position is genuine.
The Tribunal has considered the position description provided by the applicant and notes that they align with the tasks expected of a Computer Network and Systems Engineer as set out in the ANZSCO dictionary. It is clear to the Tribunal, based on the evidence provided, that the nominated position is genuinely that of a Computer Network and Systems Engineer and that the applicant’s business has demonstrated a genuine and continued need to employ the nominee to perform that occupation.
For these reasons, the Tribunal finds that 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 relevant instrument. 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 Tribunal is satisfied that the nominated occupation of Computer Network and Systems Engineer is not specified in an instrument, and that the applicant has provided a copy of the most recent contract of employment between itself and the nominee, dated 5 October 2021.
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 reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The Tribunal accepts the representative’s submission that there is no equivalent Australian citizen or permanent resident in the role of Computer Network and Systems Engineer within the applicant’s business. Therefore, IMMI 18/033 obliges the applicant to demonstrate that it has determined the annual market salary rate for the nominated position in accordance with the relevant modern Award (if any).
The Business Equipment Award MA000021 was identified as the Award applicable to the nominated position at the time the delegate made the decision. The Tribunal and the applicant’s representative both contend that this is not the correct Award to apply in relation to a Computer Network and Systems Engineer. The correct and preferable view is that the Professional Employees Award 2020, a modern Award directly applicable to professionals in the information technology sector (not equipment technicians), is the correct Award against which the annual market salary rate should be determined.
The applicant’s representative has provided detailed submissions on 3 August 2022 outlining the justification for classing the nominated position as a Level 3 Professional as defined in the Professional Employees Award 2020. The Tribunal has considered the analysis provided regarding the various classifications and the roles undertaken by the nominee and other employees within the applicant’s business. The Tribunal is satisfied that the applicant has carefully and accurately determined the appropriate Award rate that must apply to the nominated position, being a Level 3 Professional. The minimum annual salary for that position as set out in the pay guide for that Award is $72,432 per annum. According to the most recent employment documents for the nominee and the representative’s submissions, the nominee’s current annual salary is $75,000 plus superannuation.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 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: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies.
The applicant’s employment contract with the nominee contains the standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Cth). Therefore, the Tribunal is satisfied that the nominee’s terms and conditions of employment will be no less favourable than the terms and conditions that would apply to an equivalent Australian employee, and so the requirements of r.2.72(18)(a) are met.
Further, there is no evidence before the Tribunal to suggest that the applicant has engaged in discriminatory recruitment processes. The Tribunal notes there is considerable evidence in the Departmental file as well as fresh evidence before the Tribunal regarding the applicant’s efforts to fill positions within its business. Therefore, the requirements of 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 ss 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 LIN 18/059. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The Tribunal’s first consideration in determining whether the LMT condition in s 140GBA applies to the nominated position is whether it would be inconsistent with an international trade obligation specified in the relevant instrument. The appropriate legislative instrument to consider is the one in force at the time of decision, which is LIN 21/075.
The nominee is a citizen of Brazil. He has worked in the nominated position on a full time basis since at least February 2020. The Tribunal notes it would be inconsistent with Australia’s international trade obligations as a World Trade Organisation member country to impose labour market testing in these circumstances. The Tribunal confirms that Item 5 of LIN 21/075 identifies the General Agreement on Trade Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organisation as an international trade obligation of Australia. Australia is a party to the GATS by virtue of its membership of the WTO, as is Brazil.
Without wishing to provide a dissertation on international trade obligations, the Tribunal finds that under the horizontal section of the GATS, Australia has committed to a LMT exemption for “natural persons who have a specialised knowledge at an advanced level of a proprietary nature of the company’s operations and have been employed by the company for a period of not less than two years”. In this case, the nominee has been employed on a full time basis since at least February 2020. As one of a handful of employees of the applicant, and one who, based on the evidence before the Tribunal, has intricate knowledge of the applicant’s clients and their needs, the Tribunal is satisfied that he has specialised knowledge at an advanced level of a proprietary nature such that the obligation under GATS is invoked and the nominated position is LMT exempt.
For these reasons, the labour market testing requirements in s 140GBA are not applicable.
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 is satisfied that the applicant is liable to pay the training nomination charge as the application was made in February 2019. The Tribunal has reviewed the Departmental file and is satisfied that the relevant training nomination charge was paid at the time the application was made. Therefore, the requirements of s.140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Mary Sheargold
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 2964

29 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Appeal