Pulse Tech Solutions Pty Ltd (Migration)

Pulse Tech Solutions Pty Ltd (Migration) [2022] AATA 4936 (20 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pulse Tech Solutions Pty Ltd
REPRESENTATIVE:  Dr Sukhpal Singh Chahal (MARN: 1576992)
CASE NUMBER:  1921205
HOME AFFAIRS REFERENCE(S):          BCC2019/3650653
MEMBER:George Hallwood
DATE:20 December 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 20 December 2022 at 1:53pm
CATCHWORDS
MIGRATION–nomination – Medium term stream – Developer Programmer – application is compliant – no adverse information –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 July 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 23 July 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) because they did not consider the position associated with the nominated occupation to be genuine.
Mr Ketankumar Gohil appeared before the Tribunal on behalf of the applicant, Pulse Tech Solutions Pty Ltd, on 9 December 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
Having particular regard to the nomination application of 23 July 2019 and documents provided in relation to that application the Tribunal finds:
· The applicant has nominated the occupation Developer Programmer - 261312 under s 140GB(1)(b) in relation to a proposed applicant, Ms Bansari Vashi, for a Subclass 482 visa: reg 2.73(1);
·     The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);
·     The applicant provided evidence after the hearing that the nomination was accompanied by the applicable nomination training contribution charge: reg 2.73(5A);
· The nomination is in the Medium term stream as the occupation, Developer Programmer ANZSCO code 261312 is listed as Item 150 in Section 7 medium and long term strategic skills list specified occupation in the instrument LIN 19/048: reg 2.73(6);
·     The applicant has identified the nominee, Ms Bansari Ashokbhai Vashi, in the nomination: reg 2.73(8);
·     The nomination includes the name of the occupation, Developer Programmer, and the corresponding 6 digit code, 261312, the location at which the occupation will be carried out, Adelaide South Australia, the proposed period of stay for a visa granted on the basis of the nomination, up to 4 years, the annual turnover for the nomination, and any other specified information: reg 2.73(9);
·     The nomination includes written certification that the applicant has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);
·     The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13); and
·     The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO or the relevant instrument; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO or the relevant instrument; and, unless the occupation is exempt, that the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14).
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is nothing before the Tribunal to suggest there is any adverse information known to Immigration about the applicant or a person associated with the applicant.
At the hearing, Mr Gohil told the Tribunal that he knew of no adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant provided a notification of approval as a standard business sponsor demonstrating the applicant is a standard business sponsor from 11 June 2019 until 11 June 2024.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is nothing before the Tribunal to suggest there is a debt as a result of the requirements in 140ZO of the Act.
At the hearing, Mr Gohil told the Tribunal that he knew of no outstanding debt owed by the applicant as a result of the requirements in 140ZO of the Act. Evidence was provided after the hearing of payment of the relevant fees.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
For these reasons the requirements of reg 2.72(6) are met.
The instrument IMMI 18/032 requires the nominee to have satisfied the language test requirements. Relevantly, one of the approved language tests specified in the instrument is the International English Language Testing System (the IELTS). The instrument also sets out the required test scores for the IELTS where the applicant applied for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream. The required scores are an overall band score of 5.0 and a score of at least 5.0 for each test component.
The applicant provided an IELTS Test Report from 6 January 2018 for Ms Vashi who had an overall band score of 7.0 and a score of at least 6.5 for each test component.
For these reasons the requirements of reg 2.72(14) are met.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
Section 7 of the instrument specifies occupations for the medium and long term strategic skills list. At item 150 “Developer Programmer” with the six digit code 261312 is specified. The instrument contains no applicability conditions for this occupation.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
A submission dated 31 August 2022 describes the applicant’s business as a reputable custom software development company offering complete development and maintenance support for building web applications tailored to client needs. The business commenced operation in 2018. After only 6 or 7 months the business was going so well Mr Gohil told the Tribunal it needed staff other than him and his wife. The first year of revenue was $250,000 and has built up to $550,000 with an expectation to turn over $600,000 in the near future. Their customer base is small to medium sized enterprises. Mr Gohil says that he was working 14 to 15 hour days and that he needed someone to support him, to visit clients and understand their needs, and then get the job done. The submission states that the role of a Developer Programmer is critical to the efficient and effective operation of the business. The applicant has provided a letter of genuine need dated 16 July 2019 which aligns with the current submission demonstrating a need for the position associated with the nominated occupation. The Tribunal is satisfied that this is the case.
The Tribunal is satisfied that the provided roles and duties of the position closely relate to the ANZSCO description of the nominated occupation and aligns closely with the described needs of the business.
The employment contract dated 16 July 2019 demonstrates that the position is full time and the financial statements demonstrate that the business is of a scale and has the financial capacity to pay for the position over the next 4 years.
For these reasons the Tribunal is satisfied that the position is genuine and full time.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(12) must be met.
The nominated occupation is not specified in the relevant instrument in this case.
The applicant is not an overseas business sponsor and the nominee will be engaged under a written contract of employment – dated 16 July 2019, which is signed and dated by the employer and the nominee, and which has been provided to the Minister. After the hearing the applicant has provided a new employment contract signed and dated 14 December 2022.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
The applicant told the Tribunal that they do not have an equivalent Australian worker in the equivalent position. The applicant provided a Market Salary Report dated 16 July 2019. This report was based on information from Payscale, job advertisements for similar roles, and ABS data from JobOutlook.gov.au. Based on this report the Tribunal is satisfied that the market salary rate for the nominated occupation at the time of application is $70,000 and that this has been determined in accordance with the instrument.
After the hearing the applicant also provided excerpts from the Professional Employees Award 2020 demonstrating contemporary earnings for the occupation. This together with the new contract of employment also evidences to the satisfaction of the Tribunal that the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation. The current nominee’s annual earnings in relation to the nominated occupation is $97,268 plus superannuation which aligns with the rate in the relevant award. Therefore, the Tribunal is satisfied the annual market salary rate for the occupation has been determined by the person in accordance with the instrument.
For these reasons the requirements of reg 2.72(15)(c) are met.
The rate of $70,000 excluding any non-monetary benefits, for the occupation is not less than the TSMIT of $53,900.
For these reasons the requirements of reg 2.72(15)(d) are met.
The employment contract at time of application shows that the nominee’s annual earnings in relation to the occupation will be $70,000 which is not less than the rate for the occupation. The Tribunal also notes that the current employment contract shows that the nominee’s annual earnings in relation to the occupation is $97,268. As the nominee’s annual earnings in relation to the occupation is based on the relevant Award, the Tribunal is satisfied that the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation.
For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings of $97,268 will not be less than the TSMIT of $53,900.
For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation.
For these reasons the requirements of reg 2.72(15)(g) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
Mr Gohil told the Tribunal that the applicant has lawfully operated a business in Australia and has not engaged in discriminatory recruitment practices.
The Tribunal has no evidence that the applicant has engaged in discriminatory recruitment practices.
For these reasons the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.
The Tribunal is satisfied that because the nominee’s nationality, as signified by her passport, is Indian, the requirement of labour market testing is not inconsistent with the international trade obligation set out in the instrument LIN 21/075: s 140GBA(1)(c).
The Tribunal is satisfied that there are no occupation or major disaster exemptions under the instrument IMMI 18/058 relevant to this application which was made after 18 March 2018: s 140GBB and s 140GBC.
For these reasons the labour market testing condition applies.
The Instrument IMMI 18/036 sets out the specified period for labour market testing relevantly requiring that the period within which labour market testing is required to be undertaken in relation to a nominated occupation is the period of 4 months ending on the day on which the nomination form in relation to the nominated application is lodged. In this case the nomination was lodged on 23 July 2019 and the dates of various recruitment advertising by the applicant were from 14 June 2019 until 22 July 2019 with one advertisement on 27 July 2019 (outside the specified period). The Tribunal is satisfied the labour market testing was undertaken in the specified period: ss 140GBA(3)(a) and (4).
IMMI 18/036 also sets out the manner in which labour market testing is to be undertaken. The instrument requires at least two advertisements that are commissioned or authorised by the approved sponsor, and which meet certain requirements including: on a recruitment website with national coverage; or, in print media with national reach in Australia. In this case the applicant advertised the vacancy on two national websites (SEEK and Jura); and nationwide newspapers (News Group). For this reason the Tribunal is satisfied that labour market testing was undertaken in the manner set out in the legislative instrument: ss 140GBA(3)(aa) and (5).
The Tribunal is also satisfied that, based on the information provided, nomination was accompanied by evidence of the labour market testing: ss 140GBA(3)(b)(i) and (6A).
Because the business was very new and the only employees were Mr Gohil and his wife, there had been no redundancies or retrenchments. Therefore, the Tribunal is satisfied s 140GBA(3)(b)(ii) is met.
The applicant provided a copy of the summary of applicants for the position and reasons for rejecting the applications which the Tribunal is satisfied are reasonable and that there is no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder available to fill the nominated position: s 140GBA(3)(d).
As there had been no redundancies or retrenchments, the Tribunal is satisfied that no Australians or permanent residents were made redundant or retrenched: s 140GBA(4A).
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
As liability to pay the charges imposed under s 140ZM relevantly arises for nominations made on or after 12 August 2018 and this application was lodged on 23 July 2019, the applicant is liable to pay the charge.
Regulation 5 sets out the amount and method for calculating the training contributions charge ($1,200 pa where the applicant’s annual turnover is less than $10 million) which is then multiplied by the years of the visa period (four years in this case). The applicant provided a copy of the receipt for the full amount required of $4,800.
For these reasons the requirements of s 140GB(2)(aa) are met
Concluding paragraph
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
George Hallwood
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(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)…

[2022] AATA 4936

20 December 2022

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Immigration

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