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

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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 2200
Decision Date: 8 July 2022

CaseChat Overview and Summary

This matter concerned an application by Project 42 Pty Ltd for approval of a nomination for a Temporary Skill Shortage visa (Subclass 482). The nominated occupation was Chief Executive or Managing Director (ANZSCO 111111). The Administrative Appeals Tribunal was required to determine whether the nominated occupation was a "specified occupation" under the Migration Regulations 1994, whether the nominated position was "genuine," and whether Project 42 had complied with labour market testing conditions.

The Tribunal considered whether the nominated occupation and its ANZSCO code corresponded to an occupation specified in the relevant legislative instrument in force at the time of nomination, specifically the Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018. It also examined the meaning of "nominated annual earnings" and whether the position was "genuine" as required by sub-regulation 2.72(10)(a). The Tribunal also had to assess compliance with labour market testing obligations under section 140GBA of the Migration Act 1958, including whether these obligations were inconsistent with Australia's international trade obligations under the General Agreement on Trade in Services (GATS).

Deputy President J.L Redfern PSM found that Project 42 had provided sufficient evidence to satisfy the requirements of regulation 2.72 of the Migration Regulations 1994. The Tribunal accepted that the nominated occupation was a specified occupation and that the position was genuine, noting that Project 42 was a continuing business that had operated since early 2018 and had generated significant revenue. The Tribunal was satisfied with the evidence presented regarding the nominated annual earnings and the compliance with labour market testing.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination be approved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 EVIDENCEIs the nominated occupation a specified occupation? 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. 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). 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”

Decision

Reasons for decision

Having regard the above reasons, I am satisfied that Project 42 meets the requirements of regulation 2.72.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.J.L Redfern PSMDeputy PresidentATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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)…

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.J.L Redfern PSMDeputy PresidentATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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)…