Outcomes Directed Support Pty Ltd (Migration)

[2023] AATA 739

Outcomes Directed  Support Pty Ltd (Migration) [2023] AATA 739 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Outcomes Directed Support Pty Ltd

REPRESENTATIVE:  Mr Paul Joseph Smith (MARN: 9576905)

CASE NUMBER:  1926553

HOME AFFAIRS REFERENCE(S):          BCC2019/3234391

MEMBER:George Hallwood

DATE:31 March 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 31 March 2023 at 3:14pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – short-term stream – disability services officer – labour market testing – change of company name but same business and ABN – old company name used in advertising for position – combined hearing with visa refusal review – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 140GBA(3)

Migration Regulations 1994 (Cth), rr 2.72, 273

CASE

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 August 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).

2. The applicant applied for approval on 30 August 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 Short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s140GBA(3) because labour market testing was not carried out in accordance in the manner prescribed by the instrument LIN 18/036.

4. Ms Renata Roberts appeared before the Tribunal on behalf of the Applicant on 31 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nick Roberts, a Director of the Applicant. As this is a combined hearing with that of the related visa application, Ms Nichole Catherine Cunningham also appeared in relation to her visa application case number 1927674. Mr Lee Walker, a secondary visa applicant and member of the family unit of Ms Cunningham in the related visa application, also appeared before the Tribunal.

5. The applicant was represented in relation to the review.

6. 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

1. 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

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

2. The Tribunal has considered the nomination application and finds:

   · The applicant nominated an occupation – Disability Services Officer ANZSCO Code 411712 under s 140GB(1)(b) in relation to a proposed applicant, Ms Cunningham, for a Subclass 482 visa: reg 2.73(1)

   ·     The nomination was made using the approved form and fee – IMMI 18/038: regs 2.73(3), (4) and (5);

   ·     The nomination is in the Short-term stream and is a short term specified skilled occupation in the instrument LIN 19/048: reg 2.73(6);

   ·     The applicant has identified Ms Cunningham as the nominee in the nomination: reg 2.73(8);

   ·     The nomination includes: the name of the occupation, Disabilities Services Officer; the corresponding 6 digit code 411712; the location at which the occupation will be carried out - Cleveland Queensland; the proposed period of stay for a visa granted on the basis of the nomination – up to 2 years; and, the annual turnover for the nomination – at page 2 of the nomination application: reg 2.73(9);

   ·     The nomination at page 13 includes written certification that the applicant has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);

   ·     The occupation is not exempt as specified in the instrument IMMI 18/035. The nomination at page 13 includes written certification that the employment contract with the nominee will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);

   ·     The nomination includes at page 13:

   o   written certification that the tasks of the position include a significant majority of the tasks specified for the occupation of in ANZSCO (or the relevant instrument if no ANZSCO code;

   o   that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; and,

   o   unless the occupation is exempt, that the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14).

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

No adverse information known to Immigration

1. 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.

2. At the hearing, Ms Roberts told the Tribunal that she was not aware of any adverse information known to Immigration about the applicant or a person associated with the applicant.

3. The Tribunal is not aware of adverse information known to Immigration about the applicant or a person associated with the applicant.

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

Nominator is a standard business sponsor

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

2. The applicant was approved as a standard business sponsor on 17 May 2018 for a period of five years until 17 May 2023.

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

Payment of debt mentioned in s 140ZO

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

2. Ms Roberts told the Tribunal that any debt mentioned in s 140ZO of the Act has been paid in full.

3. There is nothing before the Tribunal suggesting there is an outstanding debt in relation to s 140ZO of the Act.

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

Requirements for existing Subclass 457 or Subclass 482 visa holders

1. 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).

2. 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.

3. For these reasons the requirements of reg 2.72(6) are met.

4. The Minister did not request evidence that the nominee satisfies the language test requirements.

5. For these reasons the requirements of reg 2.72(14) are met.

Specified occupation

1. 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 occupation must also apply to the nominee in accordance with the instrument.

2. The nominated occupation, Disabilities Services Officer, and its 6-digit code – 411712 correspond to an occupation and 6-digit code specified in the instrument IMMI 19/048. The nominated occupation is not the subject of any applicability conditions specified in IMMI 19/048.

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

Position must be genuine and full-time

1. 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.

2. The job advertisement for the position related to the nominated occupation states that the Applicant “is a home care support service organisation, caring for and supporting disabled people and elderly in their own homes and the community”.

3. The organisation chart demonstrates that the business employs several Service Coordinators and Client Service Managers as well as the nominated occupation of Disability Services Officer. The Tribunal is satisfied the nominated occupation is one that is genuine given the nature of the organisation and mix of occupations.

4. The employment contract dated 1 December 2019 sets out that the position is full time.

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

Employment under contract

1. 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. 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.

2. The Tribunal has found that:

   ·     the nominated occupation is not specified in the instrument IMMI 18/035;

   ·     the applicant is not an overseas business sponsor;

   ·     the nominee will be engaged as an employee under a written contract of employment by the applicant; and

   ·     the applicant has provided the Minister with a copy of the contract signed by the applicant and nominee.

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

Annual earnings

1. 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 of $250,000. 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) and relevantly, 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).

2. As the annual earnings in relation to the occupation will not be at least the specified amount of $250,000, the requirements of reg 2.72(15) must be met.

3. Ms Roberts told the Tribunal that there was no Australian citizen or permanent resident performing the same work as the position related to the nominated occupation in the same workplace at the same location.

4. The nomination application sets out that the applicant considered the Social, Community Home Care and Disability Services Industry Award 2010 together with JobOutlook annual salary for Disabilities Services Officer and the average annual salary on Payscale, all of which were relatively consistent identifying an annual market salary of around $56,000. This was supported by Ms Roberts’ oral evidence.

5. Ms Cunningham’s contract of employment provides that her weekly pay rate is $1,098.47 which is approximately $57,120 per annum.

6. The Tribunal is satisfied that the annual market salary rate for the nominated occupation has been determined by the applicant in accordance with the relevant instrument. For these reasons the requirements of reg 2.72(15)(c) are met.

7. The rate of $57,120 is greater than the TSMIT of $53,900. For these reasons the requirements of reg 2.72(15)(d) are met.

8. The nominee’s annual earnings of $57,120 in relation to the occupation is not less than the rate for the occupation of $56,000. For these reasons the requirements of reg 2.72(15)(e) are met.

9. The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.

10. There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

Employment conditions

1. 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.

2. 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.

3. There is no information before the Tribunal that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.

4. Ms Roberts told the Tribunal that the applicant has never engaged in any discriminatory recruitment practices. There is nothing before the Tribunal to indicate that the applicant has engaged in any discriminatory recruitment practices

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

Labour Market Testing

1. 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).

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 LIN 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.

3. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI LIN 18/036.

4. The Tribunal finds:

   ·     the labour market testing condition applies to the applicant, having regard to:

   o labour market testing would not be inconsistent with an international trade obligation determined in the relevant instrument LIN 21/075; – s 140GBA(1)(c); and

   o   the nomination is not subject to the major disaster exemption or the skill and occupational exemptions – s 140GBB and s 140GBC; and

   ·     as the labour market testing condition applies:

   o labour market testing has been undertaken in the specified period as set out in LIN 18/036 – ss 140GBA(3)(a) and (4);

   o labour market testing was undertaken in the manner set out in the legislative instrument LIN 18/036 – ss 140GBA(3)(aa) and (5);

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

   o the nomination was accompanied by information about recent retrenchments/redundancies – s 140GBA(3)(b)(ii);

   o there is no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position – s 140GBA(3)(d); and

   o Ms Roberts told the Tribunal that no Australians or permanent residents were made redundant/retrenched whether the testing post-dates the redundancies or retrenchments – s 140GBA(4A).

5. The nomination application was refused by the delegate because the advertisement used to demonstrate labour market testing was undertaken by a business name that the delegate did not believe was related to the nomination applicant.

1. At the hearing Ms Roberts explained to the Tribunal that the company named in the nomination application was called Outcomes Directed Support Pty Ltd, which on 26 November 2018 changed its name to Complete Nursing and Home Care (Qld) Pty Ltd. While there was a change of company name, the ABN and CAN remained the same as did the business. The entity that advertised the position, which was always to be based in Queensland as the Seek advertisement shows, was an old company name that was based in western Victoria (Geelong) and that was no longer operating. The confusion appears to be as a result of an HR person within the business using existing links within Seek to place the advertisement.

2. The Tribunal is satisfied that the advertising was for the position that is related to the nominated occupation that is the subject of this nomination application.

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

Nomination training contribution charge

1. 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).

2. The applicant, who is liable to pay the training charge, paid the training charge at the time of the nomination application and has cited the receipt at the hearing.

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

Concluding paragraphs

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

DECISION

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

George Hallwood
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.

1. The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

2. 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.

3. 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.

1. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

3. The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. …