O'Briens Window Cleaning Services Pty Ltd (Migration)

O'Briens Window Cleaning Services Pty Ltd (Migration) [2024] AATA 2187 (20 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  O'Briens Window Cleaning Services Pty Ltd
REPRESENTATIVE:  Ms Sylvia Arroyo (MARN 0640213)
CASE NUMBER:  2115043
HOME AFFAIRS REFERENCE(S):          BCC2020/2901958
MEMBER:Peter Papadopoulos
DATE:20 June 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 20 June 2024 at 2:58pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Contract Administrator – genuine position – organisational structure of the business – significant growth in revenue and operations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 30 December 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the Attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl 2.72(10)(a) because they were not satisfied that the position associated with the occupation was genuine.
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.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant, Mr Sayanthan Vairavanathan, as the person who will work in the occupation as required by regs 2.73(1) and (8). The nomination was made using the internet, the approved form and the fee has been paid as required by regs 2.73(3), (4) and (5). There is also no evidence before the Tribunal indicating that the nomination was not accompanied by any nomination training contribution charge that the nominator was required pay in relation to the nomination, thereby satisfying the Tribunal that reg 2.73(5A) has been met.
The nomination also includes the location of Annandale, New South Wales, at which the occupation will be carried out and includes the name, 6-digit ANZSCO code of the occupation of Contract Administrator (ANZSCO 511111), the proposed period of stay of up to 2 years, and the annual turnover for the nominator. The nomination does not apply in the Labour Agreement stream and the occupation is for a short-term skilled occupation in the Short-term stream as required by 2.73(6). Appropriate certifications, as required by regs 2.73(12), (13) and (14) were made by the nominee such that:
·they have not engaged in conduct in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act;
·he employment contract entered into with the nominee complies with, or will comply with, Commonwealth and State or Territory laws unless the occupation is exempt;
·the tasks of the position include a significant majority of the tasks specified in ANZSCO or the relevant instrument if there is no ANZSCO code for the occupation; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO or the relevant instrument if there is no ANZSCO code for the occupation; and, unless the occupation is exempt, the occupation is a position in the person’s business, if they are or would be an overseas business sponsor, or, the occupation is a position is in the person’s business or an associated entity’s business.
For these reasons, the Tribunal is satisfied that the nominator made the nomination in accordance with the requirements of reg 2.73. Accordingly, reg 2.72(3) has been 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.
There is no adverse information before the Tribunal about the applicant or a person associated with the applicant.
For these reasons, the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Departmental records provide that the applicant has held the status of standard business sponsor pursuant to valid sponsorship agreements for the periods 7 August 2017 – 7 August 2022 and 13 December 2022 – 13 December 2027.
The Tribunal finds that the applicant is a standard business sponsor pursuant to a valid sponsorship agreement, and that the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream.
For these reasons, the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
The Tribunal has no evidence before it that the applicant has any outstanding debt under s 140ZO.
For these reasons, the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019. The occupation must also apply to the nominee in accordance with the instrument.
Having reviewed the available material, the Tribunal finds that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated 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.
A proper assessment of this criterion involves a determination of not only whether or not the position in question is genuine in the sense that the position exists, but also whether that position really is what it purports to be. In terms of the latter, 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.[1] In Cargo First Pty Ltd v MIBP [2016] FCA 30, it was settled that the assessment requires a qualitative analysis of the position that is the subject of the nomination to determine whether it is ‘genuine’.[2] The Court held that, in considering whether the position associated with the occupation was genuine, the decision-maker was required to reach a state of satisfaction as to whether or not:
·     there was a ‘position’ of the kind identified in the nomination;
·     the person occupying that position was in fact required to undertake ‘tasks’ of the kind set forth in ANZSCO; and
·     the ‘tasks’ required to be undertaken included a significant majority of the tasks set forth in the ANZSCO.[3] In conducting this analysis, the decision maker must have regard to the correct version of ANZSCO which, in this context, is the version published at the time the Tribunal makes its decision.[4]
[1] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34].
[2] Cargo First Pty Ltd v MIBP [2016] FCA 30.
[3] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34].
[4] Mora v MIBP [2018] FCA 1819.
In addition, reg. 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant specified the following information in the nomination application form that was lodged on 30 December 2020 in relation to the responsibilities and main tasks of the position:
Responsibilities: Primary objective of this role is to efficiently manage the contracts of O'Briens Window Cleaning Services and perform Contract administrative, compliance and resource allocation functions.
Main tasks:
- Managing the tendering processes, by producing and collating all information required by clients to ensure good business practice and a timely submission.
- Developing, reviewing and negotiating variations to contracts.
- Managing paperwork associated with contracts such as preparation of monthly reports & schedules.
- Negotiate contract terms with internal and external partners.
- Making amendments and preparing subcontracts to current contracts as and when required.
- Ensuring that the company is in compliance with the terms of the contracts.
- Providing contractual guidance to site manager, safety advisors, team leaders, etc.
- Preparing monthly progress claims for the works carried out.
- Attending client meetings when necessary and take responsibility for actions arising.
- Working closely with the service delivery team and other colleagues to resolve requests and issues as quickly and efficiently as possible.
The applicant also specified the following other information about the position in the application form:
The company has a portfolio of 444 clients at the present moment, all of which are representative of companies, corporate bodies, strata bodies. There are no individual/personal clients. Thus, for all professional services to be rendered, a contractual
agreement is necessary. At the moment, the company has 17 contractual agreements which have recently been completed and confirmed by signature. In the coming months, these contracts may be amended or variations necessary to be drafted. New tenders have already been lodged and it is expected that these will be processed in the new year.
The Tribunal has had regard to the following ANZSCO occupational dictionary definition pertaining to the occupation of Contract Administrator (511111) and the tasks for the unit group 5111 Contract, Program and Project Administrators:
UNIT GROUP 5111 CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS

CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.
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)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odeveloping, reviewing and negotiating variations to contracts, programs, projects and services
oresponding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
omanaging paperwork associated with contracts, programs, projects and services provided
oworking with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
oadvising senior management on matters requiring attention and implementing their decisions
ooverseeing work by contractors and reporting on variations to work orders
opreparing and reviewing submissions and reports concerning the organisation's activities
ocollecting and analysing data associated with projects undertaken, and reporting on project outcomes
oreviewing and arranging new office accommodation

Occupations:
511111 Contract Administrator
511112 Program or Project Administrator

511111 CONTRACT ADMINISTRATOR

Alternative Title:
Contract Officer

Prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation.
Skill Level: 2
Having considered the submissions from the representative and the available evidence, particularly the material provided to the Tribunal as it relates to the organisational structure of the business, the recent significant growth in the revenue and operations of the business whereby it has secured large-scale commercial window cleaning contracts, and the heightened need for a full-time employee to administer a broad range of relatively complex service contracts with commercial clients, the Tribunal accepts that there is a ‘position’ of the kind identified in the nomination. Furthermore, the Tribunal is satisfied that Mr Vairavanathan occupies the position given the extensive evidence pertaining to his role within, and contribution to the success of, the business along with payslips confirming payment of an income to him by the applicant. On this basis, the Tribunal accepts that:
·Mr Vairavanathan is required to undertake ‘tasks of the kind set forth in ANZSCO, and
·the tasks required to be undertaken include a significant majority of the tasks set forth in the ANZSCO.
Having considered the signed employment contract and salary variation letter indicating that the nominee’s salary is now $100,000 plus superannuation and that the nominee would be employed on a full-time basis, the Tribunal is satisfied that the position is full-time.
Therefore, the Tribunal is satisfied that the position is genuine and full-time.
For these reasons, the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. The nominated occupation is not specified in IMMI18/035 and the applicant is not an overseas business sponsor. Therefore, the nominee must be engaged as an employee under a written contract of employment with the applicant or an associated entity of the applicant: reg 2.72(11). Reg 2.72(12) does not apply as the applicant is not an overseas business sponsor.
The Tribunal has been provided with a signed contract of employment dated 23 December 2020, which suitably demonstrates that the nominee will be engaged by the applicant as an employee. Further material including a variation to the terms of employment that facilitated a salary increase to $100,000 in July 2021 and various payslips support the Tribunal’s finding that nominee is engaged as an employee under a written contract of employment with the applicant or an associated entity of the applicant.
For these reasons, the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The amount specified in the relevant instrument for the purposes of reg 2.72(15)(b) is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

The Tribunal is satisfied that there are no Australian employees performing equivalent work at the same location. As there is no fair work instrument, state industrial instrument or transitional instrument applicable to the nominated occupation, the AMSR in accordance with the relevant instrument must be determined by reference to relevant information: s 8(b) of the relevant instrument. In this context, relevant information includes but is not limited to
·Information published on the Australian Government’s Job Outlook website;
·Job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
·Written advice from registered employer associations and/or unions; and
·Remuneration surveys generated across the relevant industry by a reputable organisation or body.
Provided to the Department were a number of job advertisements posted on national recruitment websites in late 2020 for various advertised positions: an advertisement on Seek for a full-time Contracts Administrator in Sydney ($65,000 per annum base + superannuation and bonuses), an advertisement on Hays for a full-time Contract Administrator for a creative organisation in the arts and culture industry in Sydney ($69,000 per annum = 15.4% superannuation), an advertisement on Seek for a full-time Contract Administrator for a construction company in Sydney ($70,000 - $85,000 per annum), an advertisement on Seek for a full-time Contract Administrator for a commercial energy broker company ($65,000 per annum – superannuation and bonus), an advertisement on Seek for a Contract Administrator for a remedial commercial and residential building company in Gosford ($35-$45 per hour including superannuation), an advertisement on Seek for a full-time Contract Administrator for a construction firm in Sydney ($72,800 per annum + superannuation), an advertisement on Jobactive for a full-time Contract Administrator in Sydney ($65,000 per annum base + superannuation and bonuses). Various remuneration surveys were also provided which generally indicated that the median base salary for the occupation, where performed in Sydney, was approximately $75,000 per annum.
The representative provided to the Tribunal a Payscale Salary Guide indicating an annual salary range between $51,000 and $110,000 for the nominated occupation. Evidence of similarly advertised positions of national recruitment website were also provided by the representative along with a submission that they indicated a market salary range being offered for similar roles between $66,667 and $130,000
Having considered this information, and finding that it amounts to relevant information as defined in IMMI18/033, the Tribunal is satisfied that the AMSR for the nominated occupation is around $85,000, and that the AMSR has been determined in accordance with the relevant instrument and exceeds the TSMIT. For these reasons, the requirements of reg. 2.72(15)(c) and (d) are met.
Further, the nominee’s annual earnings at $100,000 (plus superannuation) are not less than the TSMIT at $53,900. Therefore, the Tribunal is satisfied that the nominee’s annual earnings in relation to the nominated occupation will not be less than the rate for the occupation and, not less than the TSMIT. Therefore, the Tribunal is also satisfied that the requirements of regs 2.72(15)(e) and (f) are met.
The Tribunal has also considered the entirety of the Departmental file and observes that there is no suggestion that there is any information known to Immigration indicating that the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation. Therefore, the Tribunal is satisfied that the requirements of reg 2.72(15)(g) are met.
On the above, the Tribunal is satisfied that the requirements of reg 2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The Tribunal has considered the information and evidence provided to the Department and Tribunal, including the employment contract and subsequent variation letter. There is no information before the Tribunal which indicates the nominee’s employment conditions will be less favourable than those for the Australian equivalent. For these reasons, the requirements of reg 2.72(18)(a) are met.
Further, there is no information before the Tribunal which indicates that the applicant has engaged in any discriminatory recruitment practices. For these reasons, the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
For these purposes, labour market testing 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. 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 manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.
It is not inconsistent with any international trade obligation to require the applicant to satisfy labour market testing as specified in the relevant legislative instruments: IMMI 18/219 and 20/29.
The applicant is not exempt from satisfying the labour market testing condition by s 140GBB- Major Disaster Exemption, as the Minister has made no such exemption in this case.
Advertisements for the position were provided to the Department showing the position was advertised on the SEEK website from 11 November 2020 and the Job Active website from 12 November 2020 and that these advertisements were active for at least 30 days. These advertisements fulfil the requirements set out in IMMI 18/036 whereby the position was advertised in at least two places for a period of 28 days within the four months immediately before the application.
The Tribunal is satisfied that the requirements of s140GBA(3)(a) and (4) are met. The Tribunal is also satisfied that the nomination application was accompanied by evidence of labour market testing and the requirements of s 140GBA(3)(b)(i) and (6A) are met.
It was stated in the nomination application that the applicant had not retrenched or made redundant any Australian citizens or permanent residents in the nominated occupation in the last four months. There is also no evidence before the Tribunal that any retrenchments or redundancies have been made by the applicant in the relevant period. The Tribunal is satisfied that the requirements of s 140GBA(3)(b)(ii) and s 140GBA(4A) are inapplicable.
Given the above, the Tribunal is satisfied that the applicant has been unable to successfully recruit from within the Australian labour market for the nominated position.
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The business nomination application was lodged after 12 August 2018, and therefore, the requirements of s 140GB(2)(aa) are applicable. There is no information before the Tribunal, including within the Department file, indicate that the nomination training contribution charge has not been paid.
For these reasons, the requirements of s 140GB(2)(aa) are met.
Conclusion
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.
Peter Papadopoulos
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 2187

20 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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