PROJECT 42 PTY LTD (Migration)

[2022] AATA 2200

PROJECT 42 PTY LTD (Migration) [2022] AATA 2200 (8 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PROJECT 42 PTY LTD

REPRESENTATIVE:  Miss Rowena Prasad (MARN: 1279309)

CASE NUMBER:  1829604

HOME AFFAIRS REFERENCE(S):          BCC2018/2200563

MEMBER:Deputy President J.L Redfern PSM

DATE:8 July 2022

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 08 July 2022 at 4:32pm

CATCHWORDS:

MIGRATION – Temporary Skill Shortage visa (Subclass 482) nomination – approval for nominated position of Chief Executive or Managing Director (ANZSCO 111111) – whether inapplicability condition applies to specified occupation – meaning of ‘nominated annual earnings’ – whether nominated position is a ‘genuine position’ – self-sponsorship – labour market testing condition – whether inconsistent with international trade obligation – obligations under General Agreement on Trade in Services (GATS) – compliance with labour market testing – decision under review set aside

LEGISLATION

Migration Act 1958, ss 140GB, 140GB(2), 140GBA, 140GBA(1) – (6A).

Migration Regulations 1994, regs 2.57A, 2.72, 2.72(10)(a), 2.73, Schedule 2.

CASES

Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30
Liby Holdings Pty Ltd (Migration) [2022] AATA 1394
Pasricha v Minister for Immigration and Border Protection [2017] FCA 779
Semmrak Pty Ltd (Migration) [2021] AATA 2796
1420370 (Migration) [2016] AATA 3138

SECONDARY MATERIALS

Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018
Migration (IMMI 18/035: Specification of Exempt Occupations) Instrument 2018
Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018
Migration (IMMI 18/059: Period within which labour market testing is required to be undertaken) Instrument 2018
Migration (LIN 19/048: Specifications of Occupations – Subclass 482 Visa) Instrument 2019
Migration (LIN 19/212: Specification of Exempt Occupations) Instrument 2019
Migration (LIN 21/075: (International trade obligations relating to labour market testing) Determination 2021
Explanatory Statement to Migration (IMMI 18/035: Specification of Exempt Occupations) Instrument 2018
Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Procedural Instruction – Migration Regulations – Divisions – Temporary Skill Shortage visa (subclass 482) – nominations – 4.6.4 International trade obligations and LMT (reissued 1/10/2019).

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2018 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, Project 42 Pty Ltd (Project 42), applied for approval on 22 May 2018. 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 of the Act. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.

3. The delegate decided not to approve the nomination because she was not satisfied that the position nominated was genuine. Mr Amila Deshantha Gardi Hewa Pattinige (Mr Amila), director and shareholder of Project 42, was nominated by Project 42 in the position of Chief Executive Officer. Because the nomination by Project 42 was refused, Mr Amila’s application for a Subclass 482 visa was also refused. He also applied for a review of the decision to refuse his visa and his application, together with the application for review by Project 42, were listed for hearing concurrently.

4. Project 42 appeared before the Tribunal on 25 February 2022. Mr Amila gave evidence. Project 42 and Mr Amila were represented by migration agent, Miss Rowena Prasad. I requested further information during the first hearing. The hearing was adjourned to give Project 42 the opportunity to provide further evidence and submissions in support of the nomination. Mr Amila again appeared before the Tribunal on 17 June 2022 and gave evidence in relation to those matters.

5. I was considerably assisted by the written and oral submissions made by Miss Prasad. I also note, for the record, that prior to the first hearing Miss Prasad provided extensive submissions and updated evidence in support of the application for review that were cogent and directed to the issues in dispute with clearly identified and paginated evidence. She also provided post-hearing submissions of a similarly high quality. As will be apparent from these reasons, while I have not accepted all of the contentions made by Miss Prasad, her efforts to address the issues raised in a timely and clear manner was of considerable assistance to me in identifying and resolving the determinative issues in this case.

6. For the following reasons, I have decided to set aside the decision under review and substitute a decision approving the nomination.

   LEGISLATIVE FRAMEWORK

7. The issue in the present case is whether Project 42 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.

8. As noted, the delegate refused the nomination because she was not satisfied that the position associated with the nomination was genuine, as required under sub-regulation 2.72(10)(a). She did not make findings in relation to the other requirements. If I am satisfied about compliance with this requirement, I must consider the other requirements under reg 2.72. It is therefore apt to set out the legislative framework governing approval of nominations to identify the contentious matters that require determination.

9. Sub-regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

10. Regulation 2.73 sets out a number of general technical and procedural requirements in respect of the nomination, including the requirement that the nomination must be made using the Internet and must be in a particular form, accompanied by the fees specified by the Minister and with any nomination training contribution charge payable.[1] Relevant to the facts in this case, the occupation nominated must be an occupation specified in an instrument made by the Minister under sub-regulation 2.72(9) in force at the time the nomination is made.[2] The nomination must identify the nominee and must provide certain information such as the name of the occupation, the location or locations which the occupation is to be carried out and the annual turnover for the nomination.[3] The nominee must provide certifications about matters such as whether or not it has engaged in conduct in contravention of s 245AR(1) of the Act, that the sponsor has entered into a contract in writing with the nominee that complies with employment relations laws and that the tasks being undertaken by the nominee include a significant majority of the tasks specified for the occupation in guidance in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) published by the Australian Bureau of Statistics.[4] The ANZSCO publication and ANZSCO codes are explained in more detail later in my reasons.

    [1] Sub-regulations 2.73(3)-(5A).

    [2] Sub-regulation 2.73(6).

    [3] Sub-regulation 2.73(9).

    [4] Sub-regulations 2.73(12)-(14).

11. I have reviewed the nomination and supporting documents and I am satisfied that the requirements of sub-regulation 2.72(3) are met. I also note that this was not a contentious issue raised by the delegate at the time the assessment of the nomination was undertaken. As such, I have not set out a detailed analysis of these requirements.

12. Sub-regulation 2.72(4) requires that either: there is no adverse information known to Immigration about Project 42 or a person associated with Project 42; 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. The reference to ‘Immigration’ should now be taken to refer to the Department of Home Affairs, which includes the immigration portfolio. It is submitted that there is no evidence of adverse information known to Immigration before the Tribunal. I accept this submission and I am therefore satisfied that the requirements of sub-regulation 2.72(4) are met.

13. Sub-regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. Project 42 was approved as standard business sponsor on 10 August 2018 for a period of five years. As such, I am satisfied that the requirements of sub-regulation 2.72(5) are met.

14. Sub-regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no evidence that Project 42 has any outstanding debt under s 140ZO of Act. I am therefore satisfied that the requirements of sub-regulation 2.72(5A) are met.

15. 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 sub-regulation 2.72(6) and sub-regulation 2.72(14) do not apply.

16. Sub-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. The occupation must also apply to the nominee in accordance with the instrument. The occupation nominated is the occupation of Chief Executive Officer and the 6-digit code is 111111. This occupation and 6-digit code are referred to in the relevant instrument. This is not in dispute. However, the issue for determination is whether the occupation nominated is excluded in the circumstances of this case. This matter is contentious and was the subject of submissions and evidence at the hearing. My findings and reasons in relation to this requirement are detailed later in these reasons.    

17. Sub-regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. Sub-regulation 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement. This is the ground for the refusal and is a critical issue for determination.

18. Sub-regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment by the nominee (or an associated entity) and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument. Sub-regulation 2.72(11) applies when the applicant is not an overseas business sponsor and sub-regulation 2.72(12) applies when the applicant is an overseas business sponsor. Project 42’s representative contends that this requirement does not apply to this nomination and that this is relevant to the issue about who employs Mr Amila and how he is paid. This matter is considered below.

19. Sub-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 relevant instrument.

20. The relevant instrument, made by the Minister pursuant to sub-regulation 2.72(17), is Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (IMMI 18/033). The amount specified in IMMI 18/033 for the purposes of sub-regulation 2.72(15)(b) is AUD 250,000. As Mr Amila’s annual earnings are less than AUD 250,000 the requirements in sub-regulation 2.72(15) apply.

21. Regulation 2.57A provides for the meaning of 'earnings'. Where sub-regulation 2.72(15) applies, it requires that: the annual market salary rate (the rate) for the occupation has been determined by the nominee by reference to the relevant instrument (sub-regulation 2.72(15)(c)); the rate, excluding any non-monetary benefits (as defined in sub-regulation 2.57A(3)), for the occupation is not less than the Temporary Skilled Migration Income Threshold (TSMIT) (sub-regulation 2.72(15)(d)); 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 (sub-regulation 2.72(15)(e)); the nominee's annual earnings, excluding any non-monetary benefits (as defined in sub-regulation 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 (sub-regulation 2.72(15)(f)); 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: sub-regulation 2.72(15)(g).

22. IMMI 18/033 also sets out the method for determining the 'annual market rate' salary for the nominated occupation. Section 7 specifies the method for determining the salary where an Australian worker is performing equivalent work in the workplace. In this case, I am satisfied that there is no such worker performing equivalent work at the same workplace as Mr Amila. As such, s 8 of IMMI 18/033 is the relevant provision. Section 8 provides that where there is no fair work instrument, State industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for the occupation is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.

23. At the time of the application, Project 42 provided evidence about the range for market salaries for chief executives and managing directors. According to research published by Job Outlook,[5] which was provided by Project 42 at the time of the application, the average weekly earnings for a chief executive or managing director was $2,572, which is $133,744 per annum. Under a contract of employment between Project 42 and Mr Amila dated 21 May 2018, his annual earnings, including superannuation, are in excess of $202,000. As such, on the face of it, Mr Amila’s nominated annual earnings significantly exceed average annual earnings for the occupation of a Chief Executive Officer or Managing Director. It is also self-evident that his annual earnings will not be less than the TSMIT. I am therefore satisfied that the requirements of sub-regulations 2.72(15)(c)-(g) are met.

    [5] Job Outlook is a Commonwealth Government website which publishes information about occupations.

24. Sub-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. I have reviewed the employment contract for Mr Amila and the available Department file and records. There is no information before me that indicates Mr Amila’s employment conditions (other than earnings) will be less favourable than those for an Australian equivalent worker. Accordingly, I am satisfied that the requirements of sub-regulation 2.72(18)(a) are met. Sub-regulation 2.72(18)(b) provides that if Project 42 is lawfully operating a business in Australia, it must not have engaged in discriminatory recruitment practices. I am satisfied that Project 42 is lawfully operating a business in Australia and there is no evidence before me to indicate that it has engaged in any discriminatory recruitment practices. I am therefore satisfied that the requirements of sub-regulation 2.72(18)(b) are met.

25. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the 'labour market testing condition' unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation. This is a contentious issue that was the subject of evidence and post hearing submissions and my findings in relation to this issue are detailed below.

    ISSUES IN DISPUTE

26. For the reasons above, I am satisfied that Project 42 meets a significant number of the requirements for approval of the nomination. There are three contentious issues that remain for determination, one of which was the subject of the refusal by the delegate.

27. The issues in this case are whether the nominated occupation is a specified occupation for a Subclass 482 visa (as required under sub-regulation 2.72(8)), whether the nominated occupation is genuine (as required by sub-regulation 2.72(10)(a)) and whether Project 42 complies with the labour market testing conditions set out in s 140GBA.

    BACKGROUND AND OUTLINE OF EVIDENCE

28. Project 42 was incorporated in January 2018 and trades under the name ‘This is 42’. According to information provided to the Department at the time of the application, Project 42 is a Sydney-based technology company, providing a web-based and mobile applications member-based platform with the objective of building growth through facilitating exclusive events on the platform. The platform was to be directed to intellectual events and thought leadership programs in relation to art, science, design, sports and music.

29. At the hearing, Mr Amila explained that Project 42 is involved in multimedia consulting and specialises in promoting ‘intellectual verticals’. The premise of the business is to facilitate engagement between corporations and well-known intellectuals, to provide thought leadership within the corporation and the community more generally. When it commenced operations, Project 42 was originally focussed on identifying intellectuals to create public speaking tours and social media platforms. In the financial year ended 30 June 2019, Project 42 successfully promoted several events, including a national tour by well-known American theoretical physicist and futurist, Michio Kaku, called ‘The Future of Humanity’. Another event promoted was a feminist debate, referred to as ‘This is Feminism’, which was held over the course of a weekend in April 2019. The debate between author Roxanne Gay and conservative commentator, Christina Hoff Sommers, was reported widely, including in the Sydney Morning Herald, which noted that the event was hosted by Sydney-based talk event company This is 42. These events generated revenue of nearly $900,000 in the 2018-19 financial year.

30. In the start-up phase of the business, Project 42 employed six staff, being an events manager, video editor, office manager, graphic designer and public relations and social media managers. There were contracts of employment entered into with each of these staff, who are claimed to be Australian citizens or permanent residents. In its first full year of operations, Project 42 paid over $208,000 in wages and over $280,000 in contractors’ expenses, being salaries paid for casual staff in promoting and running the events.

1. Project 42 planned further events in 2020, including a proposed speaking tour by Yasmin Mohammed, author of ‘Confessions of an ex-Muslim’. This speaking tour had to be cancelled when the Australian borders were closed in March 2020.

2. Project 42 provided documentation to support these claims, including signed contracts of employment with each of its staff, promotional material and associated documents relating to the tours promoted by Project 42 in 2019 and the arrangements made in relation to the proposed tour for 2020, documents relating to Project 42’s incorporation, business activity statements lodged with the Australian Taxation Office and financial statements for Project 42 for the financial years ended 30 June 2019, 30 June 2020 and 2021.

3. According to Mr Amila, prior to Project 42 he established and operated several businesses in Australia in 2010, including a business trading under the name ‘Think Inc’. This business was involved in promotional tours and thought leadership programs. Mr Amila’s former partner was involved in the business. According to evidence given by Mr Amila at the hearing, he and his partner separated, unfortunately acrimoniously, and he decided to start Project 42 is a new venture, building on the contacts and ideas that he had generated in the previous business.

4. The advent of the Covid-19 pandemic in 2020 and the closure of international borders significantly impacted the business of Project 42 such that its income in the financial year ended 30 June 2020 dropped to just under $60,000. Project 42 continued to operate during this year but made a significant loss, with total expenses of just over $400,000 including wages expenses of approximately $152,000.

5. According to Mr Amila, he made the difficult decision at this time to terminate the employment of the Project 42 staff because the company could not retain employees without being able to book talent and run events. Mr Amila said that Project 42 ‘pivoted’ its business to operate primarily online, changing its focus from physical tours to a strategy aimed at capturing the intellectual and thought leadership market through podcasts, subscription video on demand platforms, and a movie and television series. As outlined by Mr Amila in a detailed statement provided to the Tribunal, Project 42 promoted podcasts, one of the more notable being ‘Conversations with Coleman’, broadcast by Coleman Hughes (an American writer and podcaster), who Project 42 claims is one of the highest rating podcasts in the world. The subscription video on demand platform is claimed to be an ambitious Project comparable to the Netflix thought leadership programs. According to Mr Amila, as a result of his efforts and the change in focus Project 42 was able to generate revenue in the financial year ended 30 June 2021 of approximately $274,000. As part of this strategy, Project 42 established operations in Sri Lanka and United States, with the incorporation of ‘This is 42 LLC’ in the US. Project 42 owns shares in This is 42 LLC and, according to Mr Amila, sales revenue generated by the US company have been paid to Project 42 during the current financial year. These operations now employ 26 contractors, primarily in Sri Lanka. Mr Amila says that Project 42 will commence re-employing staff in Australia as the company’s financial viability improves over the next 12 months. He says that the reason why he was able to re-establish the viability of Project 42 was because of his innovative strategies and his 20 years of experience and business contacts in this niche market.

6. Following the first hearing, Project 42 provided further evidence in support of its claims about the growth in the business, including a profit and loss statement for Project 42 for the period ended 30 April 2022, a profit and loss statement for This is 42 LLC for the period ended 30 April 2022, a certificate of incorporation for This is 42 LLC, a cash flow statement for Project 42 with detailed revenue and expense projections for the calendar year ended 31 December 2022 and contracts between Project 42 and TEG Dainty Pty Limited, which is part of the TEG Pty Limited and Ticketek Pty Limited umbrella of companies, in relation to proposed tours by overseas speakers in 2022 and 2023. The contracts are not dated or signed and appeared to be in draft. They were on ‘TEG Dainty’ letterhead.

7. At the second hearing Mr Amila explained that Project 42 had recently secured two lucrative contractual arrangements with international speakers, American astrophysicist Professor Neil Degrasse Tyson and British evolutionary biologist, Professor Richard Dawkins. Mr Amila has negotiated arrangements for these tours to be backed by TEG Dainty. He says this is the first time that a large promoter like Ticketek Pty Limited has been interested in promoting and touring intellectual speakers. According to Mr Amila, the Professor Richard Dawkins tour will generate a total of $1.2 million in revenue with a minimum percentage share of income to Project 42 of $200,000, and potential income of up to $400,000. The Professor Tyson tour is projected to generate $3.2 million in sales, of which revenue of at least $300,000, to a maximum of $600,000, will be paid to Project 42. The Professor Richard Dawson tour across Australia and New Zealand in February 2023 and the Professor Neil Degrasse Tyson tour, also scheduled for Australia and New Zealand, is planned in late in 2022. The documents provided by Project 42 appear to corroborate this evidence, although it is apparent there is further work required to complete these arrangements.

8. According to the further financial statements provided by Project 42, This is 42 LLC generated revenue of USD 245,872 in the period ended 30 April 2022 and Project 42 generated revenue of $249,598 for the same period.

9. Mr Amila also provided a detailed statement setting out his tasks and duties in the role of Chief Executive Officer. He states that his role includes determining the objectives and strategies for Project 42, which initially involved promoting the intellectual speaking tour events during 2019, changing the strategy towards the online business, then returning to the promoting tours in Australia, as evidenced by the most recent negotiation with TEG Dainty group. Mr Amila states that he monitors and evaluates the performance of Project 42 against its organisational objectives and strategies, provides overall direction and management to Project 42 and prepares, or arranges through accountants, for the preparation of reports, budgets and forecasts. He says that he has been involved in selecting and approving the selection of senior staff in Sri Lanka and engages tax advisors and lawyers to ensure that Project 42 and This is 42 LLC comply with all relevant legislation.

10. Mr Amila is a credible witness. Project 42 provided detailed evidence and submissions, supported by documentary evidence. I accept that Mr Amila undertakes a range of duties commensurate with the role of the Chief Executive Officer as described in ANZSCO code 111111. I am also satisfied that since the pandemic, Project 42 now operates across three different locations. I cannot make an assessment about the likely success of the business and whether it will generate the income projected. However, I am satisfied, on the basis of the available evidence, that Project 42 is a continuing business which has been in operation since early 2018 and has continued to operate over the pandemic. I am also satisfied, from the material provided, that it is negotiating new contracts for tours to be undertaken across Australia and New Zealand in 2022-23 and has been able to generate income from the businesses it is now operating in the US and Sri Lanka. Whether Project 42 will be as successful as Mr Amila anticipates, is difficult to predict. At best, there are positive signs Project 42 may succeed in a niche market and I accept that this has largely been because of the efforts of Mr Amila.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Is the nominated occupation a specified occupation?

11. The question of whether an occupation nominated is a ‘specified occupation’ is fundamental to the Temporary Skill Shortage visa scheme. The Regulations provide for the Minister to specify occupations to be included by legislative instrument and those instruments are regularly updated, each with their own transitional provisions.  Information about the specified occupation must be included in the nomination application (sub-reg 2.73(6)) and the question of whether an occupation is a specified occupation involving a genuine position must be considered at the time of approval.

12. Sub-regulation 2.72(8) requires that the nominated occupation (and its 6-digit code) must correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, which in this case was Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018 (IMMI 18/048). Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019 (LIN 19/048) commenced on 11 March 2019 and repealed IMMI 18/048 but, according to the application and saving provisions in s11, despite its repeal IMMI 18/048 continues to apply in relation to pending nominations made before LIN 19/048 commenced. As such, IMMI 18/048 is the relevant instrument for the purposes of sub-regulation 2.72(8).

13. IMMI 18/048 includes a table in s 6 which is referred to as the Medium and Long-Term Strategic Skills List. This table contains an item number column and three additional columns, which comprise the name of an occupation (column 1) and ‘ANZSCO code’ (column 2) and ‘inapplicability conditions’ (column 3). The ANZSCO code means the code for an occupation set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) published by the Australian Bureau of Statistics. ANZSCO, and the code identifying particular occupations, is helpfully discussed by Mochinsky J in Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 at [33] to [35] by reference to submissions made by the Minister in that case as follows:

    33.      A copy of relevant extracts from ANZSCO was provided in the Minister’s folder of authorities. The extracts include the explanation: “In ANZSCO, occupations are organised into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation” (extract titled ‘Conceptual Basis of ANZSCO’, page 2 of 9). The headings for the various levels are: [headings omitted]

    34.      It is explained that ‘occupations’ are: the most detailed level of ANZSCO; subdivisions of the unit groups; distinguished from other occupations in the same unit group on the basis of detailed skill specialisation; and sets of jobs which involve the performance of a common set of tasks (extract titled ‘Conceptual Basis of ANZSCO’, page 3 of 9).

    35.      It is also explained that: ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals; the definitional material describing each occupation “is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO”; and the descriptions are therefore “only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required”

14. IMMI 18/048 provides that certain occupations do not apply to nominees who are to work in certain positions and contains the details of those ‘inapplicability conditions’ in a table set out within s 8.

15. The occupation nominated by Project 42 is Chief Executive Officer. This occupation, with its 6-digit code of 11111, is specified in the Medium and Long-term Strategic Skills List at item 1. According to the table in section 6, the position of Chief Executive Officer is impacted by inapplicability condition number 5, which is contained in s 8 and relevantly applies where ‘the position has nominated annual earnings of less than AUD180,001’. Accordingly, if the nominated occupation or position is for a Chief Executive Officer with nominated annual earnings of less than $180,001, the occupation does not fall within the meaning of a specified occupation for the purposes of a Subclass 482 visa and the nomination will not meet the requirements of sub-regulations 2.73(6) and 2.72(8).

16. The relevant ANZSCO code states as follows:

    Chief Executives and Managing Directors determine, formulate and review the general policy programs and the overall direction of organisations within the framework established by boards of directors and similar governing bodies.

    …………

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

17. It is further noted that the tasks include:

    ·determining objectives, strategies, policies and programs for organisations

    ·providing overall direction and management to organisations

    ·authorising material, human and financial resources to implement organisational policies and programs

    ·monitoring and evaluating performance of organisations against organisational objectives and strategies

    ·consulting with senior subordinate staff and reviewing recommendations and reports

    ·preparing, or arranging for the preparation of, reports, budgets and forecasts and presenting them to governing bodies

    ·representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility

    ·selecting, or approving the selection of senior staff

    ·ensuring the organisation complies with company laws and other relevant legislation

18. Project 42 contends that Mr Amila’s role as a Chief Executive Officer is consistent with ANZSCO code 111111. It also contends that the inapplicability condition does not apply because it must be assessed at the time of the decision and, as is implicit from the submissions, into the foreseeable future. Mr Amila is currently paid remuneration by both Project 42 and its US based related entity, This is 42, and, given the growth opportunities within the businesses, it is contended that there are good prospects he will be earning more than $180,001 in the next financial year.  

19. Having regard to the submissions made, questions arise as to when and how this inapplicability condition (or caveat as it is sometimes called) should be assessed for the purposes of determining whether the occupation is a specified.

20. The facts relating to this issue are uncontroversial.

21. There is a written contract of employment dated 21 May 2018 between Mr Amila and Project 42 which provides that he is to be paid an annual salary of AUD202,575. However, according to the financial statements provided, Mr Amila has not been paid this salary since he commenced in the role. For the financial year ended 30 June 2019, being the first full year of operation, wages of $208,858 were paid by Project 42 and, while Mr Amila was not paid all of his nominated salary in the year, the balance was said to have been allocated to his loan account. In the financial year ended 30 June 2020, because of the impact of the pandemic expenses were significantly reduced and wages paid by Project 42 in this period fell to $152,132. According to Mr Amila he was again not paid all of his salary, but his loan account increased to cover the shortfall. This is corroborated by the loan accounts for this financial year which increased by nearly $80,000 from the previous year. In the financial year ended 30 June 2021, wages recorded as paid were $34,559 but according to Mr Amila, he was paid wages by This is 42 (although he could not recall how much) and the balance of his salary was allocated to his loan account, which increased by approximately $100,000 from the previous year. In the financial projections for Project 42 for January to December 2022, it is forecasted that Mr Amila will be paid $112,000 from Project 42. It is also submitted that Project 42 and This is 42 are now in the position to pay salary of at least $15,000 per month for the financial year ended 30 June 2023 and beyond. Project 42 contends that it does not matter whether it is paid solely from Project 42 and that his income from This is 42 should also be considered.

22. It is contended that even though there is a written contract of employment between Mr Amila and Project 42, sub-regulation 2.72(11) does not apply and, as such, Mr Amila can be employed and therefore paid by an associated entity. This means that other sources of remuneration can be taken into account for the purposes of the assessing whether the caveat applies. Sub-regulation 2.72(11)(c) provides that certain occupations may be exempt from this requirement as specified by the Minister by instrument made pursuant to sub-regulation 2.72(13). It is submitted that Migration (IMMI 18/035: Specification of Exempt Occupations) Instrument 2018 (IMMI 18/035) applies to applications made after 18 March 2018. While IMMI 18/035 was repealed by Migration (LIN: 19/212: Specification of Exempt Occupations) Instrument 2019 (LIN 19/212), it is submitted that IMMI 18/035 continues to apply to pending applications. IMMI 18/035 provides that the occupation of Chief Executive Officer is exempt for the purposes of sub-regulation 2.72(11)(c). It is not clear why IMMI 18/035 continues to apply because there does not appear to be a relevant saving or transitional provision contained in LIN 19/212 that would have this effect. However, it is immaterial for the purpose of the submission because LIN 19/212 also excludes the application of sub-regulation 2.72(11) to the occupation of chief executive or managing director.

23. It is contended that the impact of, and the intent behind, this exemption is to allow nominees under certain occupations to be employed and paid in a position other than in the business of the standard business sponsor. This is explained in the Explanatory Statement to IMMI 18/035 as follows:

    The effect of this legislative instrument is to enable, pursuant to the regulations, TSS Visa holders, nominated for an occupation specified by this Legislative Instrument, to work in a position other than with a business or an associated entity of the standard business sponsor. …………. The list of occupations in the new Legislative Instrument to IMMI 18/035 is the same as those listed in Column 2 of IMMI 13/067 and is primarily composed of very senior company executives and medical practitioners and specialists. The reason the persons in these occupations are not required to work directly for their sponsors is to accommodate the flexible employment arrangements typically associated with certain occupations such as medical practitioners. The provision ensures that the sponsor will not breach the obligation if the visa holder or former visa holder is engaged as an independent contractor rather than as an employee and one of the specified occupations………….

24. Project 42 contends the effect of IMMI 18/035 (or LIN 19/212) is that sub-regulation 2.72(11) does not apply to the occupation of Chief Executive Officer and Managing Director and that remuneration paid by associated entities can be taken to into account for the purpose of the caveat.

25. I accept the contention that sub-regulation 2.72(11) does not apply to this occupation, but I do not accept this has the impact of excluding the inapplicability condition in the circumstances of this case.

26. In identifying whether an occupation is a ‘specified occupation’ for the purposes of approval under the Temporary Skill Shortage visa scheme, the decision-maker must examine the relevant instrument in force at the time the nomination is made, in this case, IMMI 18/048. Section 6 lists the occupations specified as ‘medium and long-term strategic skills occupations’ and notes that the occupations are subject to s 8 of the instrument. The occupation of ‘chief executive or managing director’ is affected by inapplicability condition in item 5(a). Relevant to this case, item 5(a) of s 8 provides that the occupation of chief executive or managing director listed in s 6 does not apply to the nominee where the position has nominated annual earnings of less than AUD108,001. In my view, this refers to the annual earnings nominated at a particular time, namely the time of application. This is plain from the language used, in contrast with the language used in other conditions, which expressly contemplate assessment of the inapplicability condition in the present tense. For instance, item 10 contains an inapplicability condition if the position is not located in regional Australia (noting that this definition may change) and item 11(a) contains an inapplicability condition where the position is based in a front-line retail setting, applying to sales and marketing managers, supply and distribution managers and customer service managers. Similar wording is adopted in items 2, 3(a), 4(a) and 23. Each of these inapplicability conditions relate to nominated annual earnings for various occupations listed in sections 5, 6 and 7 of IMMI 18/048.

1. While I do not need to reach a conclusion in this case, I am of the view that all inapplicability conditions must be assessed at the time the nomination is made (for the purposes of determining whether an occupation nominated is a specified occupation and therefore meets reg 2.73(6)) and, depending on the language used in the inapplicability condition, also at the time of approval (for the purposes of reg 2.72(8)).

2. Further, I do not consider that this inapplicability condition requires the Minister, or the Tribunal standing in the shoes of the Minister, to be satisfied that annual earnings exceeding the inapplicability condition threshold have been paid, but rather that such annual earnings have been nominated and are, the least, payable.

3. While earnings are defined in reg 2.57A to include the person’s wages and ‘amounts supplied or dealt with in any way on the person’s behalf as the person directs’, the phrase nominated annual earnings is not defined. As such, this phrase should be given its ordinary meaning which, in this context, means the annual earnings nominated (or specified) for the position. There is nothing in the language of the inapplicability condition that requires evidence of payment or capacity to pay. Assessment of whether the inapplicability condition applies is to be made at the time of the nomination, at which time the nominee may not yet have commenced employment. The condition simply refers to ‘nominated’ annual earnings.

4. On the face of it, an employer sponsor could meet this threshold by nominating annual earnings payable to the nominee in an amount exceeding $180,001, thereby avoiding the inapplicability condition. However, an interpretation of this inapplicability condition based on its ordinary meaning is unlikely to result in perverse or contrary outcomes because this provision should not be considered in isolation. In my view, the nominated annual earnings cannot be a sham or artificial. This is because there are other provisions in the Act, the Regulations and the general law that militate against this, preserving the integrity of the Temporary Skill Shortage visa scheme. In other words, the practical effect of the legislative scheme is that annual earnings nominated must have substance and therefore must be an amount that is payable under a legally enforceable obligation.

5. For instance, annual earnings artificially nominated at an amount to avoid the caveat, particularly where the annual earnings nominated are not intended to be legally enforceable or paid, may lead to the conclusion that the position associated with the position is not genuine. This would be contrary to the requirement in sub-regulation 2.72(10)(a). If a nominee is not paid the annual earnings nominated by the sponsor in breach of contractual obligations, this failure to pay may also lead to an inference that the position is not genuine, unless there is a plausible and satisfactory explanation as to why the earnings have not been paid. Furthermore, such a failure may result in regulatory action being taken by the Department of Home Affairs on the basis that the sponsor has failed to comply with sponsorship obligations. Any such action would be adverse information for the purposes of sub-regulation 2.72(4) and this may result in a nomination being refused. Where an employment relationship is at arm’s length, a nominee who is not paid annual earnings nominated or agreed could sue the sponsor for recovery of those earnings or make a complaint to the Fair Work Commission. In an arrangement where the nominee and the nominator are related, this is unlikely to occur. However, this would be an important matter to take into account in assessing whether the position associated with the occupation is genuine.

6. In summary, consideration of whether the inapplicability condition applies for the purposes of determining whether the occupation nominated is a ‘specified occupation’ is to be assessed by reference to the annual earnings nominated in the application. The inapplicability condition requires that the nominated annual earnings should not be less than $180,001. This does not require the Minister, or the Tribunal, to be satisfied that the nominated annual earnings has been paid but rather that those earnings are payable and, as required under sub-regulation 2.72(10)(a), that the position is genuine.

7. I am satisfied that the nominated annual earnings for the position exceeds $180,001. This is based on Mr Amila’s contract of employment and the evidence about how he has been paid and how the unpaid portion of his earnings have been credited against his loan account with Project 42, which is consistent with that contract. While this is not an arm’s length contract, because Mr Amila controls Project 42, contracts of employment between a corporation and a major shareholder are not uncommon in unlisted proprietary corporations, particularly if those corporations have been established and are being driven by an entrepreneurial Chief Executive Officer or Managing Director. It is also relevant to note that it is not uncommon for shareholders employed by a corporation to provide loans to the corporation in lieu of receiving a salary where the company does not have sufficient cash reserves or is unable to pay.

8. This does not mean that the arrangement is a sham or contrived but careful examination of these arrangements in cases such as this are critical in assessing whether a nomination meets the requirements for approval, which are intended to underpin the integrity of the Temporary Skill Shortage visa program.

9. In this case, I am satisfied that the occupation nominated is a specified occupation for the purposes of the Subclass 482 visa nomination and that the requirements of sub-regulation 2.72(8) are met.

10. This leads to the next issue for determination, namely whether I am satisfied that the position associated with the position is genuine such that the requirements of sub-regulation 2.72(10)(a) have been met. This is the requirement that the delegate found was not established.

    Is the position genuine?

11. Sub-regulation 2.72(10)(a) requires that the Minister, and the Tribunal standing in the shoes of the Minister, must be satisfied that the position associated with the occupation is genuine.

12. The delegate was not satisfied that the position associated with the nominated occupation was genuine. It was noted that the intent of the Temporary Skill Shortage Subclass 482 visa program was to enable Australian businesses to temporarily fill short to medium term skill shortages with business workers when they could not find a suitably qualified and experienced Australian citizen or permanent resident to fill the position. The delegate noted that the program is not intended to be used for non-citizens to establish a business in Australia and sponsor themselves, or to facilitate the grant of a visa for friends or family members who wish to live in Australia. The delegate was not satisfied that the evidence provided by Project 42 demonstrates that the nomination was lodged to fill a genuine skills shortage, but rather to facilitate migration outcome for the nominee. Relevantly, the delegate found as follows:

    I consider that the weight of the evidence indicates that the primary purpose of nominating this position is to visit facilitate the entry of Mr Amila Deshantha Gardi Hewa Pattinige, the nominee, in Australia rather than to fill a genuine vacancy or skill shortage.

    From department records, I note that the nominee has been a resident in Australia since 15/07/2001. Of the time since first entering Australia the applicant has predominantly resided in Australia. I also note that the applicant has used a variety of visa pathways to apparently continue his residence in Australia.

    [summary migration history omitted]

    Therefore, I have assessed that it is evident from the nominee’s extensive immigration history, and minimal movements outside Australia, that the primary purpose of this application is to prolong the nominee’s stay in Australia, rather than to fill a genuine vacancy or skills shortage.

13. Project 42 contends that the question of whether a position associated with the nominated occupation is genuine is not dependent on whether the position is needed in the business but rather whether the position requires the completion of the duties as described in ANZSCO at their level of skill and complexity. The representative refers to the Explanatory Memorandum which notes as follows:

    The Minister must be satisfied that the position associated with the occupation is genuine and a full-time position (subregulation 2.79 (10)). The reference to the position being genuine is intended to have a broad meaning, including that the position genuinely requires the performance of the tasks of the occupation as described in ANZSCO (for example, see Pasricha v Minister for Immigration and Border Protection [2017] FCA 779) and that the position has not been contrived for the purposes of securing a visa for the nominee (including cases with a standard business sponsor is a business controlled by the nominee).[6]

    [6] Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018

14. It is submitted that sub-regulation 2.72(10)(a) is intended to cover nominations where a position is contrived to secure a migration outcome and that previous Tribunal and court cases involve circumstances of ‘dressing up’ an occupation. Those cases have necessarily involved analysis of the tasks and duties of the position to examine whether the nominated position is what it claims to be. It is submitted that this is not such a case. The evidence is said to clearly establish that the role nominated is the role of a Chief Executive Officer, as described in ANZSCO, and that Mr Amila has been undertaking tasks of that nature since Project 42 commenced operations.

15. It is further submitted that the fact a nominee controls the business does not exclude the sponsor from meeting sub-regulation 2.72(10)(a).

16. It is submitted that it is Mr Amila’s role to undertake the tasks as described in ANZSCO and this is critical for Project 42. Project 42 is an Australian based business that has expanded to the United States and Sri Lanka. It employed a number of Australians at its inception, but the pandemic caused the company to redirect its operations, which it did successfully. Mr Amila works across both Project 42 and This is 42 LLC and undertakes a range of duties to determine and implement the company objectives. Project 42 generated income of nearly $900,000 at the end of its first full year of operation as of 30 June 2019 and, while income fell to just under $60,000 in the following year because of the impact of the pandemic, by 30 June 2021 income had increased to just over $273,000 with the profit and loss statements for July 2021 to April 2022 showing income at $249,598 and projected income from January to December 2022, based on the contracts outlined above, is close to $1.5 million. According the financial information provided for This is 42 LLC, it has also generated revenue of USD245,872 in the financial year ending April 2022

17. In summary, and as already noted, this financial data shows that Project 42, while making a promising start at the commencement of its operations in 2018, hit a significant roadblock throughout the pandemic, but is making a slow but promising recovery projected for 2022 and beyond.

18. Having regard to Mr Amila’s oral evidence at the hearings and the documents provided corroborating Project 42’s claims, I accept that the role being undertaken by Mr Amila as Chief Executive Officer is consistent with the role described in the nomination and with the role as described in ANZSCO code 111111.

19. I also accept the submission that the fact a nominee controls the sponsor is not of itself impermissible and does not compel the conclusion that the position associated with the nominated occupation, or indeed the whole nomination, is not genuine or is contrived to achieve a migration outcome.

20. When a person establishes a business in Australia and becomes its major shareholder and director and the business then nominates the shareholder in an occupation specified for the purposes of a Subclass 482 visa, this is often colloquially referred to as ‘self-sponsorship’. There is nothing contained in the Act, the Regulations or any instrument made under the Regulations that excludes such a nomination. If it was intended to exclude such nominations, the Regulations could have easily included such a limitation. As will be noted from an analysis of the relevant provisions, the Temporary Skill Shortage visa scheme is technical and rules based. There are numerous regulations governing nominations contained in those regulations, which in turn provide for the Minister to make legislative instruments containing further rules governing the scheme. There is no such rule precluding so-called self-sponsorship and, as such, decision-makers must simply apply the Regulations and related legislative instruments by reference to their terms.

21. A similar requirement to sub-regulation 2.72(10(a) 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 to determine whether it was genuine.[7]

    [7] In this case the relevant provision was sub-regulation 2.72(10)(f) relating to the Subclass 457 (Temporary Work (Skilled)) visa.

22. Cargo First was not about self-sponsorship but focussed, like the Tribunal cases referred to by the representative in submissions,[8] on the question of whether the nominated occupation was being ‘dressed up’ as something it was not to circumvent the requirement that the occupation nominated must be an occupation specified for the purposes of the Subclass 482 visa. In Pasricha v MIBP, Mochinsky J, citing Cargo First and the decision in the Federal Circuit Court of Australia below by Judge Smith, emphasised the importance of undertaking this evaluative process and found the Tribunal was not in error in so doing, observing:

    49.      …..The legislative scheme is designed to prevent persons from obtaining Subclass 457 visas for positions associated with other occupations, being occupations for which there are not skills shortages (even though those occupations might be seen as “related” or even “closely related” to those occupations for which there are skills shortages).

    50.      In this context, it is unsurprising that the Tribunal would focus on the detailed tasks in ANZSCO that distinguish the specific occupation of Customer Service Manager from other occupations within the broader group in ANZSCO. Those other occupations may include occupations that the Minister has not decided are the subject of a skills shortage.[9]

    [8] 1420370 (Migration) [2016] AATA 3138, Member Rania Skaros, Semmrak Pty Ltd (Migration) [2021] AATA 2796, Member Alison Mercer.

    [9] [2017] FCA 779 at [49]-[50].

23. The Temporary Skill Shortage visa scheme was designed around addressing skills shortages in the Australian market. This is recognised in the Explanatory Memorandum which states that the purpose of the Migration Legislation Amendment (Temporary Skill Shortage Fees and Complementary Reforms) Regulations 2018 (which substantially amended the Regulations in 2018) ‘is to introduce skilled visa arrangements aimed at: continuing to support Australian businesses to access critical skills if skilled Australian workers are not available; ensuring that Australians have first priority for jobs; better meeting Australia’s skill needs; and increasing the quality and economic contribution of skilled migrants’.[10] If a position is nominated and approved that has not been identified as an occupation where there is a skill shortage, this would undermine the purpose of the scheme. This is no doubt the purpose of the provisions contained in reg 2.72 and, relevantly, sub-regulation 2.72(10)(a).

    [10] Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018.

24. I accept the submission that sub-regulation 2.72(10)(a) directs attention to consideration of whether the position associated with the occupation is genuine in the sense that it is what it purports to be and exists. However, I am also of the view that the requirement is arguably broad enough to cover a nomination which is itself contrived for the purpose of advancing a migration outcome such that the position is not genuine. This seems to be the approach taken by the delegate. 

25. Such an approach may be available, but it is dependent on the decision-maker not being satisfied the nominated position is genuine based on a finding that the nomination and related business is a sham. This is a high evidentiary threshold. While I accept it is the role of the sponsor to satisfy the decision-maker that the position associated with the occupation is genuine, for the decision-maker to go behind the position, and indeed the business, to make such a finding requires more than a suspicion about the purpose for the nomination. It is not enough for the nomination to have the incidental purpose or effect of advancing a permanent migration pathway and for the nominee to have a migration history that suggests he or she is seeking permanent residency.

26. As already noted, there is nothing in the legislative scheme that precludes ‘self-sponsorship’. Notably, there are several requirements which, when taken together, seek to preserve the integrity and purpose of the scheme. Those requirements are stringent. For instance, a sponsor must be approved (and there is a process for this), the nomination must be made in accordance with a specified formal procedure, the occupation nominated must be specified, the nominee must be paid in accordance with strict guidelines, the position must be genuine and, in most cases, subject to a written contract and, importantly, certain labour market testing conditions must be satisfied unless exempt. The sponsor must meet each of these requirements, which are not required to be assessed cumulatively, although several may inform findings in relation to the other.

27. In this case, Mr Amila has been living in Australia on and off for about 20 years. It is submitted, and I accept, that Mr Amila was granted various visas and that each were granted for a genuine purpose associated with the intention of the visas. Mr Amila was granted a Temporary Partner visa in 2016 based on what was said to be a genuine relationship with his then de facto partner, who was also his business partner at that time. He established and managed a business called Think Inc from 2010 and, according to Mr Amila, this business also operated in the thought leadership space. Mr Amila gave evidence to the effect that he has been involved in thought leadership, social media and documentary making for over 11 years and has operated several businesses in Australia over this period. In short, the business venture of Project 42 is part of a continuum.

28. Project 42 was incorporated in January 2018. The relationship with Mr Amila’s partner broke down in May 2018 and he withdrew his application for the permanent visa. It is submitted, and I accept, based on the evidence of Mr Amila who I found to be a credible witness, that Project 42 was established for legitimate purposes to continue with Mr Amila’s entrepreneurial work in commercialising thought leadership. This evidence is also supported by the work undertaken by Mr Amila in 2018 in the set-up phase of Project 42, the income generated by Project 42 in the financial year ended 30 June 2019, the continued work undertaken by Mr Amila and Project 42 to find new markets and generate income during the pandemic in 2020 and 2021 and the evidence of the new contracts entered into by Project 42, which have the potential to generate significant income in coming years. I am satisfied that Project 42 is a legitimate business which has the potential to be successful, to commence re-employing Australian staff and to generate other benefits for the Australian economy. Whether Project 42 is successful, remains to be seen, but based on the evidence before me I am satisfied that the business is legitimate and that the nomination is not a sham or contrived to provide employment for its director, Mr Amila, in a role designed to fall within the Subclass 482 specified occupation.    

1. Accordingly, I am satisfied that the position nominated is genuine because the position and the role undertaken by Mr Amila are consistent with the tasks described in ANZSCO 111111, Project 42 is a legitimate business that needs such a role and Mr Amila has been undertaking this role since 2018.

   Do the labour market testing requirements apply and have they been met?

2. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the 'labour market testing condition' unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation. There is no exemption that applies, although Project 42 now raises a question about whether the labour market testing condition would be inconsistent with an international trade obligation.

3. Project 42 contends that the legislation is silent on whether an exemption on this basis should be assessed at the time of the application or at the time of the decision. This is a matter that I considered in Liby Holdings Pty Ltd (Migration).[11] It was unnecessary to make a finding on this issue in that case because the position was that same regardless of whether the relevant time for assessment was the time of application or the time a decision. In this case, the representative concedes that there is no available exemption at the time of the application was made because Project 42 did not have an associated entity in the United States at that time. However, it is contended that if the assessment is to be made at the time of my decision, which is submitted to be the relevant time, the requirement to comply with the labour market testing condition would be inconsistent with the General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organisation (GATS). This is an international obligation referred to in s 5 of the relevant instrument, being the Migration (International trade obligations relating to labour market testing) Determination 2021 (LIN 21/075). As in Liby Holdings, I do not need to resolve this issue because, for the reasons that will become apparent, it makes no practical difference to my conclusion about whether the about market testing conditions apply to this nomination.

   [11] [2022] AATA 1394 at [39]-[59].

4. As noted in Liby Holdings there is an interesting issue about whether it is necessary to review each of the international trade agreements and obligations listed in LIN 21/075 for the purposes of assessing whether there is inconsistency such that the labour market condition under s 140 GBA(3) does not apply.[12]

   [12] Liby Holdings Pty Ltd (Migration) [2022] AATA 1394 at [49].

5. Section 140GBA(3) of the Act contains the provisions that establish how the labour market testing condition in respect of a nominated position will be satisfied. Section 140GBA(1) contains the provisions which set out when the labour market testing condition should apply to a nomination. Relevantly, s 140GBA(1)(c) provides that the labour market testing condition will apply if,

   …it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.

6. Section 140GBA(2) provides:

   For the purposes of paragraph (1)(c), the Minister made by legislative instrument, determine (as in international trade obligation of Australia) an obligation of Australia under international law that relates to trade international trade, including such an obligation that arises under any agreement between Australia and another country, or countries.

7. Section 5 of LIN 21/075 provides as follows:

   For paragraph 140GBA(1)(c) of the Act, each obligation of Australia under international law, relating to international trade, under the following agreements is determined as an international trade obligation of Australia…

8. Section 5 then goes on to list a number of international trade agreements between Australia and other countries in subparagraphs (a) to (p). General Agreement on Trade in Services (GATS) is listed in s 5(f) of LIN 21/075. The Schedule of Specific Commitments relating to Australia, Supplement 2 contains the provisions dealing with limitations on market access relating to the movement of natural persons. Clause 4(a) refers to “Executives and senior managers, as intra-corporate transferees, for periods of initial stay up to 4 years” and provides:

   Executives and senior managers being natural persons who are employees of a company operating in Australia, and who will be responsible for the entire or a substantial part of that company's operations in Australia, receiving general supervision or direction principally from higher level executives, the board of directors or stockholders of the business, including directing the company or a department or subdivision of it; supervising and controlling the work of other supervisory, professional or managerial employees; and having the authority to establish goals and policies of the department or subdivision of the company.

9. Project 42 submits, drawing on the Procedural Instruction issued by the Department for Temporary Skill Shortage visa (Subclass 482)-nominations[13] as follows:

   The practical effect is that the nominator is not required to provide evidence of LMT if:

   - the nominee is a current employee of an associated entity of the sponsor’s business and that associated entity operates in a WTO member country, and

   - the nominee is nominated as an Executive or Senior Manager, and

   - the nominee is responsible for the entire or substantial part of the company’s operations in Australia.

   [13] Procedural Instruction– Migration Regulations – Divisions – Temporary Skill Shortage visa (subclass 482) – nominations – 4.6.4 International trade obligations and LMT (reissued 1/10/2019).

10. It is submitted that Project 42 is not required to provide evidence of labour market testing because Mr Amila is an employee of an associated entity of the business, namely This is 42 LLC. This is 42 LLC operates in a World Trade Organisation member country, namely the United States, Mr Amila is nominated as an executive or senior manager in both Australia and the United States and he is responsible for the entire or substantial part of Project 42’s operations in Australia.

11. I reject this contention and do not accept that the effect of clause 4(a) of the relevant GATS Schedule, the terms of which must be closely examined, has the effect of exempting compliance with the labour market testing conditions because it would be inconsistent with the movement of natural persons provisions contained in the GATS. In my view, clause 4(a) is directed to intra-corporate transfers from a member country to Australia, in this case, between the United States and Australia. It does not apply to the reverse and is clearly intended to cover an employee in Australia who has been transferred to Australia from a related or associated corporation in the United States. I am therefore not satisfied, based on my assessment of the relevant provisions in the GATS, that requiring Project 42 to comply with labour market testing conditions would be inconsistent with GATS.

12. In Liby Holdings I did not form a concluded view on whether it is necessary to for a decision-maker to review each of the international trade agreements and obligations listed in LIN 21/075 to determine whether the labour market testing conditions apply to a nomination. As observed in that case I did not need to do so because an analysis of the relevant obligations clearly demonstrated an inconsistency. This is not the case here and, as such, this is a determinative issue that I must consider.

13. In Liby Holdings I noted at [50] to [57] as follows:

    50.      Unfortunately, the provisions of ss 140 GBA(1)(c) and 140 GBA(2) are not entirely clear. The question is whether the combined effect of these subsections mean that the determination made by the Minister under sub-s (2) is similar in nature to a ‘deeming’ provision whereby the Minister specifies in the legislative instrument those agreements and obligations in respect of which it is accepted that there are free-trade limitations on the freedom of movement such that the imposition of labour market testing conditions would be inconsistent with those international trade obligations. The alternative construction of these provisions is that the relevant determination of the Minister only identifies the agreement and obligations that may be inconsistent and the decisionmaker must then consider the detail to determine whether in fact the labour market testing condition would be inconsistent.

    51. The difficulty in the present case is that s 5 of LIN 21/075 simply repeats part of s 140GBA(2) and states that each obligation in agreements listed in the section is determined as an international trade obligation of Australia. This does not assist because it appears that all international trade agreements are listed. It is difficult to understand the substantive purpose and effect of LIN 21/075 in circumstances where it simply lists the various agreements. In other words, it is not clear what work is being done by the instrument if it does not have some type of deeming effect by reason of the termination.

    52.      A review of the Department’s procedures advice manual in relation to Temporary Skills Shortage Visa (Subclass 482) – Nominations (PAM) provides some guidance on the Department’s interpretation of this obligation. Paragraph 4.6.4 explains that s 140GBA does not apply when it is inconsistent with Australia’s international trade obligations for the sponsor to be required to satisfy the labour market testing condition. Thereafter the guidance enumerates the circumstances when the labour market testing condition (referred to as the LMT) will not apply to a nomination. It is apparent the Department has considered the relevant international trade obligations to assist decision-makers in assessing whether the labour market testing condition applies to a particular nomination. It is therefore apparent that the Department’s interpretation of the relevant provisions is that the relevant determination of the Minister only identifies the agreement and obligations that may be inconsistent and does not otherwise form the basis for a binding determination about whether the labour market condition would be inconsistent for the purposes of s 140 GBA(1)(c) of the Act. Guidance made in Department policy about the interpretation of legislation and legislative instruments are not binding and it falls to the Tribunal to form its own view on these matters.

    53. Section 140GBA was inserted into the Act on 29 June 2013 by the Migration Amendment (Temporary Sponsored Visas) Act 2013 (Cth). The revised explanatory memorandum for the Migration Amendment (Temporary Sponsored Visas) Bill 2013 (Cth) provides as follows:

    33. The purpose of this provision is to clarify the approved sponsors who must comply with the labour market testing condition in order for the Minister to approve their nominations under new subsection 140GB(2) of the Migration Act. The approved sponsor must be in a class of sponsors prescribed by the Migration Regulations and must have nominated a proposed occupation in accordance with paragraph 140GB(1)(b) of the Migration Act.

    34. Further, it is intended that the requirement that the approved sponsor satisfy the labour market testing condition will apply to the extent that the requirement is consistent with Australia’s international trade obligations.

    35. New subsection 140GBA(2) of the Migration Act provides that for the purposes of paragraph 140GBA(1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.

    36. The purpose of this amendment is to ensure that labour market testing cannot be required of an approved sponsor if to do so would be inconsistent with Australia’s international trade obligations as determined by the Minister by legislative instrument.

    [emphasis added]

    54.      The explanatory memorandum does not assist, although para 36 may suggest that it was contemplated s 140 GBA(2) would provide a mechanism for the Minister to make a determination about when the labour market testing condition would be inconsistent with a particular specified international trade obligation.

    55.      This construction is consistent with the first instrument made by the then Minister on 18 November 2013 which relevantly provided as follows:

    I, MICHAELIA CASH, Assistant Minister for Immigration and Border Protection, acting under section 140 GBA of the Migration Act 1958 (the Act) hereby:

    DETERMINE for the purposes of subsection 140GBA (2) of the Act the following obligations arising under international trade agreements under which the imposition of labour market testing would be inconsistent with those obligations…

    56. The Assistant Minister then proceeded to identify the particular obligations in some detail in a manner that now has been adopted in the Department’s policy, evidencing an analysis of the obligations to assess which would be inconsistent for the purposes of s 140GBA(1)(c) of the Act.

    57.      The difficulty is that the more recent determinations made under sub-s (2), namely LIN 18/183 and LIN 21/075, do not do this.

14. Having again examined the relevant legislative provisions and instruments, I remain of the view that the meaning of the ss 140GBA(1)(c) and 140GBA(2) is unclear.

15. Section 140GBA(2) provides for the Minister to make a legislative instrument to determine an obligation for the purposes of s140GBA(1)(c). The Minister has made LIN 21/075 which, unlike the first instrument made under this provision in 2013, does not identify particular obligations said to be inconsistent with the requirement to meet the labour market testing condition. LIN 21/075 merely lists the international trade agreements entered into by Australia that may be impacted, and it is not possible to identify which obligations in those agreements are inconsistent. It is therefore self-evident that LIN 21/075 has limited work to do, notwithstanding that this may not have been contemplated when s 140GBA(2) was enacted.

16. In my view, it is necessary to analyse the relevant international trade agreement under the current legislative instrument to critically examine whether it contains an obligation that would be inconsistent with the labour market testing condition. While it is not free from doubt, this interpretation best gives effect to the intent and purposes of ss 140GBA(2) and 140GBA(1)(c), which is to ensure that migration laws honour Australia’s obligations under its international trade agreements. To interpret s 140GBA(2) as having a deeming effect, given the limited terms of LIN 21/075, is not warranted or necessary to give effect to Australia’s obligations under its international trade agreements.

17. Accordingly, I give significant weight to the terms of the legislative instrument made under s 140GBA(2) which, in this case, has limited scope. This requires a decision-maker to assess each of the international trade obligations listed to identify whether the agreement contains an obligation which would be inconsistent with the imposition of a labour market testing condition. I therefore find that the labour market testing condition applies to this nomination and Project 42 is required to comply.

18. 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.

19. For nominations made on or before 11 August 2018, as in this case, to satisfy the labour market testing condition, the testing must be undertaken within a prescribed period set out in Migration (IMMI 18/059: Period within which labour market testing is required to be undertaken) Instrument 2018 (IMMI 18/059), which, for nominations made before 18 June 2018, is in the12 month period immediately before the nomination is lodged.[14] The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor's participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister.[15] However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.[16]

    [14] Refer sub-regulations 140GBA(3)(a) and (4) of the Act and s 6(a) IMMI 18/059.

    [15] Refer s 140GBA(5) and (6) as in force prior to 11 August 2018.

    [16] Refer s 140GBA(6A).

20. Project 42 contends that if the labour market testing condition applies, it met this requirement.

21. The evidence provided at the time of the application is to the effect that Project 42 advertised for the position of a Chief Executive Officer with Seek, Jobactive and Indeed. The advertisements were placed with these three online recruitment providers commencing on 2 May 2018. The advertisements in Jobactive and Indeed were free and the advertisement for Seek was paid. The position advertised was for an experienced Chief Executive Officer in the inner Sydney office with proven leadership ability. The duties were set out in the advertisements and the essential skills and attributes included a minimum of five years administration business management experience, senior leadership experience, the ability to build and manage a complex web of stakeholder relationships and excellent oral and written communication skills, including dealing with the media. The advertisements were in similar terms and noted that the role involved leading the strategic direction of the events, technology and media divisions of the company. These advertisements were run for several weeks. The responses were assessed by Mr Damson Nuygen, who was acting as managing director of Project 42 between January and May 2018. Mr Nguyen was not a shareholder or director of Project 42 and Mr Amila had known Mr Nguyen for about six months. He met him through an investor in the business, Mr Collins Nguyen. Mr Amila said he had asked Damson Nguyen to undertake the assessment because he did not wish to be involved, given the potential conflict of interest. Mr Nguyen undertook this task.

22. According to a report signed by Mr Nguyen dated 21 May 2018 there were ninety-eight respondents who applied for the position, eighty-eight from Seek, eight from Indeed and two from Jobactive.

23. Mr Nguyen stated in his report that the two Jobactive respondents were unsuitable because one did not have did not have any relevant work experience and the other had significant experience in high-level engineering roles, but this was not suitable for the skill set required by Project 42. Mr Nguyen noted that of the eight respondents from Indeed, none were suitable for a variety of reasons, including limited experience as a Chief Financial Officer rather than as a Chief Executive Officer, salary expectations, lack of relevant experience and being located outside New South Wales. The applicants who responded to the Seek advertisement were assessed as not suitable because twenty-two were located outside New South Wales or overseas and the balance did not have any or sufficient relevant work experience in the field or at the required level. The information provided shows that Mr Nguyen did a very detailed analysis of the respondents. He noted that most respondents had significant managerial experience a range of industries including media, information technology, resources and the financial sector but concluded that a large number of respondents were located outside of New South Wales and overseas and the remaining applicants were not suitably skilled or qualified. Having assessed all the applications, Mr Nguyen concluded that a suitably qualified and experienced person was not readily available to fill the role of Chief Executive Officer at Project 42.

1. Mr Nguyen was not available to give evidence. He left working with Project 42 many years ago and Mr Amila no longer has contact with him. Given the effluxion of time, I accept this evidence and am not inclined to draw negative inferences from the fact that Mr Nguyen is not available to give evidence in relation to his report. I therefore accept the report on its face. In summary, I accept that the role was advertised by Project 42 for several weeks, in May 2018, that ninety-eight respondents applied and that there was an assessment made by Mr Nguyen, who was acting as managing director of Project 42 at this time, about their suitability to fill the role of Chief Executive Officer of Project 42. I accept that a significant number did not have the relevant skills or experience or were outside New South Wales or were located overseas. Presumably a number of these respondents were not Australian citizens, permanent residents or eligible temporary visa holders. I also accept that there may have been some respondents who were suitable but did not have the particular expertise and experience of Mr Amila.

2. It is submitted that the Tribunal should be satisfied that efforts were made to recruit for the position but that that there was not a suitable qualified and experienced Australian citizen permanent resident or eligible temporary visa holder readily available to fill the position. This is because the skill set required for the role is unique. Mr Amila has been working in a senior leadership/chief executive type role in this niche and unique market for over 10 years. As such, he was, and remains, the most suitable qualified and experienced person to undertake the role, and this is now evidenced by the fact that Project 42 has successfully navigated the difficult conditions of the pandemic. Project 42 also provided references from third parties about Mr Amila’s expertise and experience, which included a letter dated 20 September 2021 by Dr Meredith Doig OAM, President, Rationalist Society of Australia, who had worked with and known Mr Amila for over a decade. She stated that Mr Amila had continued to innovate and uses his knowledge, skills and experience by accumulating networks to create and grow businesses that employed local talent.

3. The difficulty in this case is that it can be accepted that Mr Amila may well have been, and may continue to be, the most suitable qualified and experienced applicant to fill this role. This is because it would be difficult for Australian citizens and permanent residents to compete in such a specialised field. The question is whether I am satisfied, on balance, that Project 42 satisfied the relevant labour market testing within the relevant period, namely within 12 months of the nomination being lodged. The advertising by Project 42 was undertaken the month before the nomination was made. The advertising was broad in scope and a large number of respondents applied. However, all were found not to be suitably qualified and experienced for the role. Some of the respondents were clearly not suitably qualified or experienced based on the background summarised by Mr Nguyen in his report. A significant number of the applicants were not within the jurisdiction or were from overseas and were therefore unlikely to be ‘readily available’ to fill the nominated position.

4. Where a shareholder and director of the sponsor employer is nominated to occupy a key position within a corporation, it is important that detailed evidence about the labour market testing that has been undertaken is provided to assist decision-makers in forming a view about whether there has been appropriate rigour and, therefore, compliance with the condition. While I accept Project 42 recognised the potential conflicts and attempted to undertake an independent and rigorous approach to the recruitment, some of the analysis included in the written report provided by Mr Nguyen does not provide much detail about why he formed the view that several of the applicants were not ‘suitably qualified and experienced’ to fill the role, although it was clear that many were not ‘readily available’.

5. Despite this, I accept that there is a report prepared by a person who is said to have been independent of Mr Amila finding there was no suitably qualified and experienced Australian citizen or permanent resident readily available to fill the role of Chief Executive Officer of Project 42. I accept Mr ‘Amila’s evidence that he did not interfere with the assessment made by Mr Nguyen and that he was attempting to genuinely comply with the labour market testing requirements. Mr Nguyen report could have contained more detail, although I accept that it may now be difficult (over four years after the recruitment exercise) to provide fully documented information about the underlying process and analysis undertaken by Mr Nguyen. On balance, I consider it is open to find that there was no such suitably qualified and experienced Australian citizen or permanent resident readily available based on the record of the recruitment undertaken, the report of Mr Nguyen and the unique nature of the skills, qualifications and experience that were required to fill the role of Chief Executive Officer of company such as Project 42.

   Conclusions

6. Having regard the above reasons, I am satisfied that Project 42 meets the requirements of regulation 2.72.

   DECISION

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

   J.L Redfern PSM
   Deputy President

   
   

   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)…