Perfect Contracting Pty Ltd (Migration)

Perfect Contracting Pty Ltd (Migration) [2023] AATA 1579 (30 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Perfect Contracting Pty Ltd
REPRESENTATIVE:  Mr Martin Ernest Udall
CASE NUMBER:  1928829
HOME AFFAIRS REFERENCE(S):          BCC2019/2753831
MEMBER:C. Packer
DATE:30 May 2023
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 30 May 2023 at 12.16pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – painting trades worker – genuine position – updated, current and further information provided – business growth and staff shortages – nominee a long-standing employee – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40

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 23 September 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 28 May 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(10) because the delegate did not consider the position associated with the nominated occupation to be genuine.
On 18 November 2022 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide updated and current information that addressed the requirements in r.2.72. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 2 December 2022 the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 2 December 2022 the applicant requested further time to provide information. The Tribunal granted further time to 16 December 2022. However, the applicant did not provide the information within the prescribed and extended period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.
Subsequently, on 18 December 2022 the applicant provided some documents and information, which the Tribunal carefully considered.
On 15 May 2023 the Tribunal requested further information, and on 29 May 2023 the applicant provided further information.
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 finds:
·The applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);
·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);
·The nomination is in the Medium term stream as the occupation is a medium and long term strategic skills specified occupation: reg 2.73(6);
·The applicant has identified the nominee Lukas Tomiska, in the nomination: reg 2.73(8);
·The nomination includes the name of the occupation and the corresponding 6 digit code (Painting Trades Worker – 332211), the location/s at which the occupation will be carried out (Marrickville 2204), the proposed period of stay for a visa granted on the basis of the nomination (4 years), the annual turnover for the nomination: reg 2.73(9);
·The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);
·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);
·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and that the position is in the person’s business: reg 2.73(14).
For these reasons the requirements of reg 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.
Departmental systems show that allegations had been made against the company in 2017 and 2019. However, subsequently the Department approved standard business sponsorships for the business. The Tribunal is satisfied there is no adverse information known to Immigration about the applicant or a person associated with the applicant, within the terms of regs 1.13A and 1.13B. 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. The Department approved an SBS on 20 April 2022 valid to 20 April 2027. 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. There is no information before the Tribunal that shows the applicant owes a debt mentioned in 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. 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 19/048. The nominated occupation concerns a Painting Trades Worker – 332211. This corresponds to an occupation and 6-digit code specified in the instrument in the medium term stream. 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.
The applicant’s letter of 9 October 2019 stated in part:
Please find below points relating to our application to review the decision refusing application
for TSS subclass 482 visa;
1. Cristian Paganucci is no longer employed by Perfect Contracting, he resigned around
4-5 months ago, this has already been notified to IMMI on numerous occasions, he
was one of the sponsored painters which justifies getting the replacement from Lukas
Tomiska
2. Our demolition services are 90% for refurbishment projects where we are doing
internal detailed demolition of some structures, however other elements of the
building/fit-out remain. During our demolition activities damages are always caused to
adjoining surfaces, or areas in which our works are conducted. As a result of our
defects liability we are required to fix these areas which require the services of a
variety of tradesmen to follow behind our demolition crew and "make good" any
damages that are caused
3. Make good services are a specific service also supplied by Perfect Contracting,
where we de-fit an existing tenancy, and make good by providing a variety of
tradesmen to repair/alter the base building after an end of lease and before a new
tenant is organised. As an example see attached work order for supply of make good
services to one of our clients
4. Perfect Contracting undertake other contract works that are not advertised, please
refer to attached contract for installation of precast panels. We offer a full contracting
service to our clients where all works are self-delivered, This requires immediate access to tradesmen.
The General Manager’s letter of 29 May 2023 states in part:
Company Background
Perfect Contracting Pty Ltd is large scale demolition service provider and forms part of the Perfect
Group of companies. Our business has operated for over 13 years and specialises in structural
demolition, penetrations, strip outs, de-fits, make goods and emergency make safes. We work
almost exclusively in the Sydney metro area. Our work spans residential, commercial and large-scale
projects. The business cooperates extensively with the NSW State Government on rail and major
infrastructure projects across Sydney city.
We have a diverse range of professionals and tradespersons working for us. For example, civil
engineers, estimators, managers of various descriptions and so on. Jobs range from big to small but
we are always busy. We currently employ about 70 staff. Most are permanent residents and
Australian citizens. Fifteen employees are on temporary visas such as 457s and 482’s.
The Perfect Group (which includes Perfect Contracting) continues to grow from strength to strength.
Throughout COVID-19 trade remained steady before picking up significantly in 2021 as major
commercial and government infrastructure projects come online. A number of these are associated
with the NSW State Government’s COVID-19 recovery stimulus package. Some of these projects are
expected to continue for a number of years. This has meant that we are busier than ever. As
demonstrated in the financial statements provided by us previously, revenue for the business has
increased from $14.9 M to $22.6 M between 2021 and 2022. This represents a YoY increase of over
50%. We expect the 2023 figures to surpass 2022 and be another record year.
While this has been very positive for our business, the challenge we now face are staff shortages and
being able to keep up with demand. Lack of staff can mean that we are unable to take on work or
that delays occur. This can result in lost profit, lost opportunity or even penalties on time critical
projects. Staff shortages are currently acute at all levels of the construction industry. As a result, retaining existing staff has become a priority for the business.
Nominee - Lukas Tomiska - Background
Mr Tomiska has cooperated with our business since 2013. He is one of our most long standing
employees.
In early 2019, our business made the decision to nominate and sponsor Lukas as a painter (painting
trades worker) on a 482 visa. The decision to sponsor him was made on three grounds:
1. His longer term permanent appointment will allow us to plan with greater certainty
especially on medium and long term projects;
2. To retain him as a valued employee; and
3. Lack of suitably qualified Australian workers.
Position – Painting Trades Worker (ANZSCO 332211)
Mr Tomiska has and continues to be employed by us as a painter. We declare that this position is
genuine, needed by the business and available. We further declare that we can comfortable
sustain and pay for this position.
His duties and responsibilities are as per the attached job description. We note that salary details
were current as at 2019, but have since been revised upwards (see attached contract of
employment and details below).
The applicant provided purchase/work orders from 2019 that showed the business provided painting services. The nominee is currently on a Bridging Visa E with work rights.
A Payroll Employee Summary for the 2022fy showed the nominee had $76,539 earnings. Payslips from 9 January 2023 show the nominee is paid $45 per hour, as well as significant overtime rates. A Payroll Employee Summary for the 2023fy shows the nominee has $81,163 earnings to date. Photos show the nominee at a painting job.
On the basis of the material before it, the Tribunal is satisfied that the position would be full-time, and that the position associated with the nominated occupation is genuine.
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.
A contract of employment was provided in the application. A new contract signed on 6 January 2023 provided to the Tribunal shows the nominee would be employed on a 38 hour week with the usual conditions; the nominee’s hourly rate would be $45 per hour.
The General Manager’s letter of 29 May 2023 states in part:
Pay – Nominee – Mr Lukas Tomiska
Mr Tomiska has been employed with us on a full time basis since 2019 to the present day.
His pay has always been well above the Award rate. He is currently on $45.00 per hour plus
superannuation. This is $18.00 above the Award rate of $27.00 / hour.1
Mr Tomiska’s rate of pay is calculated on a per-hour basis to ensure that any overtime is properly
recorded and compensated. This is standard practice for trade positions as hours work vary. As per
his contract, his is guaranteed 38 hours per week, full time. This equates to guaranteed annual salary of $45.00 per hour x 38 hours per week x 52 weeks per year = $88920.00
The Tribunal is satisfied the nominee would be engaged as an employee under a written contract of employment by 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 18/082. 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 18/082: 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 18/082 (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).
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.
In the application the applicant sought to nominate the nominee on a wage of $55,000. A signed Employment Contract dated 28 May 2019 shows the applicant proposed to nominate the nominee on an annual salary of $55,000.
Payslips from 19 October to 14 December 2022 show the nominee is employed as a painter at an hourly rate of $36 for normal hours, that equates to about $71,136pa. The submission to the Tribunal shows reference to the Fair Work Ombudsman: “The minimum Award rate for a painting trades work is currently $26.17 / hour. Level 3 (CW/ECW 3) Painter or glazier (Page line 6 of attached Award). The applicant’s current rate of pay at $36.00 per ordinary hour is significantly above this.”
The General Manager’s letter of 29 May 2023 states in part:
Pay – Nominee – Mr Lukas Tomiska
Mr Tomiska has been employed with us on a full time basis since 2019 to the present day.
His pay has always been well above the Award rate. He is currently on $45.00 per hour plus
superannuation. This is $18.00 above the Award rate of $27.00 / hour.1
Mr Tomiska’s rate of pay is calculated on a per-hour basis to ensure that any overtime is properly
recorded and compensated. This is standard practice for trade positions as hours work vary. As per
his contract, his is guaranteed 38 hours per week, full time. This equates to guaranteed annual salary of $45.00 per hour x 38 hours per week x 52 weeks per year = $88920.00
The Tribunal is satisfied the nominee is employed on a contract with a guaranteed salary of $88,920pa, but with overtime paid at a higher hourly rate.
The TSMIT is $53,900. The Tribunal accepts the applicant determined the annual market salary rate for the nominated occupation in accordance with the relevant instrument. For these reasons the requirements of reg 2.72(15)(c) are met.

The rate, excluding any non-monetary benefits, for the occupation is not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(d) are met.
The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.
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.
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
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.
Based on the material before the Tribunal, there is no information 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.
Based on the material before the Tribunal, there is no information that indicates 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.
The applicant submits that of five applicants for the job, there were no suitable, qualified and experienced Australian citizen, permanent resident or eligible temporary visa holders readily available to fill the nominated position.
The nomination was made 28 May 2019 and the evidence of advertising provided shows advertising for a painter in English, in Jora and Indeed, in a form that satisfies the requirements of the relevant instrument. The delegate accepted the labour market testing was compliant.
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).
Departmental systems show the charge was 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.
C. Packer
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)…

[2023] AATA 1579

30 May 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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Appeal