QUALITY CENTRE FOOD SERVICES PTY LTD (Migration)

QUALITY CENTRE FOOD SERVICES PTY LTD (Migration) [2023] AATA 1359 (5 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Quality Centre Food Services Pty Ltd
REPRESENTATIVE:  Mr Arnold Joel Conyer
CASE NUMBER:  1925182
HOME AFFAIRS REFERENCE(S):          BCC2019/3853699
MEMBER:Wan Shum
DATE:5 May 2023
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 05 May 2023 at 11:50am
CATCHWORDS
MIGRATION – application for approval of nomination of position – supply and distribution manager – genuine, full-time position – documentary and oral evidence from applicant and nominee – growth of business and scope of operations – high volume and short shelf life of products – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(b), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 August 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 5 August 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
In this case, the relevant instrument specifies that the occupation of Supply and Distribution Manager, being the occupation nominated for a Subclass 482 visa, is in the Short-term stream.
The person identified for the position was Mr Enrico Lettieri, who lodged an application for a Subclass 482 visa in association with this nomination.
The delegate was not convinced that the position associated with the nominated occupation was genuine and found that the applicant did not satisfy reg 2.72(10)(a) which meant that the nomination was not approved.
As a consequence, Mr Lettieri’s visa application was later refused.
The applicant and Mr Lettieri sought review of their respective decisions. The applicant was represented in relation to the review by the abovenamed migration lawyer.
Mr Fausto Amato appeared on behalf of the applicant in his capacity as the General Manager before the Tribunal on 14 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lettieri.
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 applicant operates a food distributing business and has traded since 1994 in Sydney, Australia. According to the ASIC Current Company Extract of the applicant, the company was registered on 24 May 1994 as an Australian Proprietary Company Limited by Shares (ABN 66064817509). The current Directors are Claudio Bamonte and Gabriella Bamonte.
Mr Fausto Amato is the current General Manager and provided a statement briefly outlining some background information about the company’s business activities which is primarily in food distribution. The claim is that the applicant is the market leader for the distribution of Italian fine food products both locally made and imported to more than 1,500 active customers and subdistributors in 3 other Australian states. The company stocks over 1,000 products, 40% of which have a very short shelf life, specifically cheeses made fresh daily by a sister company, La Stella Latticini, which is based in Sydney. It was explained during the hearing that the owner had started the business in 1994 as a small distributor operating on his own for a few years before building the business into a proper food distribution company. The company has grown even further after Mr Fausto joined about 6 years ago, when they built the company into one that distributes nationwide to customers such as Woolworths, Harris Farm and hospitality groups such as Merivale, Four Seasons Hotels, Sheraton and Crown Casino. The Tribunal accepts that given this, to operate at this level, the supply and distribution systems have become even more critical.
The application form was completed with the main location where the nominated person would be working as Auburn, New South Wales (NSW), postcode 2144, with the occupation of ‘Supply & Distribution Manager’. The proposed period of employment of the nominee for this position was entered as up to 2 years.
The delegate was not satisfied that there was sufficient information to demonstrate that the position associated with the nominated occupation is genuine and found that reg 2.72(10) was not met.
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal accepts that the business activity of the organisation is as described by Mr Amato having regard to the publicly available information on the website as well as information provided by the applicant including the current organisation chart, which outlines areas of activity and positions consistent with a food distribution and import company.
The Tribunal requested additional information regarding financials and was provided with a letter from their external accountant which indicates that the final lodged sales turnover for the company in FYE22 was $30,791,307 and the turnover for the current financial year of the applicant is projected to reach over $40 million. This is a significant increase from the claimed turnover when the application was made of $25 million. The evidence is that the applicant stores product at 4 different warehouse locations now, their own warehouse and 3 third party warehouses, and distributes interstate as well as in NSW. The total purchases also appear to have increased year on year and, having regard to the products sold by the applicant, the Tribunal considers the evidence supports the claim that the business operations are high volume. The high volume along with the requirement of ensuring the product is delivered in a timely manner given the short shelf life of fresh cheeses and other dairy products is, in the Tribunal’s view, consistent with the claim of requiring a dedicated Supply and Distribution Manager. The evidence presented is that the position has been occupied by Mr Lettieri on a full-time basis since before 2019 and the Tribunal has formed the view that his evidence and that of Mr Amato supports a conclusion that the position is genuine and full-time.
For these reasons, the Tribunal finds that the requirements of reg 2.72(10) are met.
The Tribunal will now consider whether the remaining requirements are met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal finds, on the information before it, that:
·The applicant is nominating the occupation of Supply and Distribution Manager under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa and meets reg 2.73(1);
·The nomination was made using the approved form and fee as required by regs 2.73(3), (4) and (5);
·The nomination was accompanied by payment of the nomination training contribution charge: reg 2.73(5A);
·The nomination is in the Short-term stream: reg 2.73(6);
·The applicant has identified the nominee, Mr Lettieri, in the nomination: reg 2.73(8);
The nomination included the name of the occupation and the corresponding 6-digit code, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, so reg 2.73(9) is met.
In response to the question on the nomination form regarding whether the person has engaged in conduct that contravenes s 245AR(1) of the Act, the response given was ‘No’. This is accepted as meeting the requirement that the nomination includes written certification as required by reg 2.73(12).
In response to the question on the nomination form regarding whether the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, the response given was ‘Yes’. This is accepted as meeting the requirement that the nomination includes written certification regarding this matter, noting that the occupation of Supply and Distribution Manager is not exempt: reg 2.73(13).
An affirmative answer was also given in response to the following questions on the nomination form: whether the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; whether the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and, unless the occupation is exempt, whether the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, whether the position is in the person’s or an associated entity’s business. This is accepted as meeting the requirement that the nomination includes written certification of these matters, noting that the occupation of Supply and Distribution Manager is not exempt: 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.
The Tribunal is not aware of any 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 was approved as a standard business sponsor on 7 August 2019 for a period of 5 years.
For these reasons, the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO.
For these reasons, the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. 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 must have 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).
The nominee has not previously held a Subclass 457 or Subclass 482 visa. In these circumstances, the Tribunal finds that reg 2.72(6)(a), reg 2.72(7) and reg 2.72(14) do not apply.
Specified occupation
For the nomination to be approved, reg 2.72(8) requires that the nominated occupation, which in this case is Supply and Distribution Manager, corresponds to an occupation specified by the Minister in an instrument in writing for reg 2.72(8). By reference to the relevant instrument (LIN 19/048 Compilation no. 2), the nominated occupation and its 6‑digit code of 133611 correspond to an occupation and 6‑digit code specified in the relevant instrument under the Short-term Skilled Occupation List. However, where there is a number listed in column 3 of an item of the Short‑term Skilled Occupation List, and the circumstances set out in column 1 of the table in s 9 of the instrument corresponding to the number so listed apply to the position in which the nominee is to work, the occupation listed in column 1 of the item of the Short-term Skilled Occupation List does not apply to the nominee. For the occupation of Supply and Distribution Manager, the numbers 3, 11 and 20 appear in column 3 of the Short-term Skilled Occupation List. The effect of this is that where the circumstances set out in s 9 against items 3, 11 and 20 exist, the occupation does not apply to the nominee. These items are copied below:
Item 3
(a) the position has nominated annual earnings of less than AUD65,000; and
(b) if the nominee is to be transferred to fill the position—the transfer is not an intra‑corporate transfer to which an international trade obligation applies.
Item 11
The position:
(a) is based in a front-line retail setting; or
(b) predominantly involves direct client transactional interaction on a regular basis.
Item 20
(a) the position is in a business that has an annual turnover of less than AUD1,000,000; and
(b) if the nominee is to be transferred to fill the position—the transfer is not an intra‑corporate transfer to which an international trade obligation applies.
The employee contract reflects that the annual earnings have been, and will be, greater than AUD65,000 and the nominee will not be transferred to fill the position. The evidence before the Tribunal reflects that the position is not based in a front-line retail setting and does not predominantly involve direct client transactional interaction on a regular basis. Finally, the information from the accountant reflects that the annual turnover will not be less than AUD1,000,000.
Given the above findings, the circumstances in items 3, 11 or 20 do not exist and the Tribunal finds that the occupation applies to the nominee. Therefore, reg 2.72(8) is 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 LIN 19/212. Where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor, and reg 2.72(11) must be met.
The nominated occupation is not specified in the relevant instrument. The information before the Tribunal indicates that the nominee will be engaged as an employee under a written contract of employment by the applicant directly. The Tribunal notes that there is a sister company which manufactures the fresh cheeses that the applicant distributes, and Mr Amato gave evidence that the nominee also provides some advice on that company’s warehouse. However, having sighted a copy of the contract on behalf of the applicant and signed by the nominee on 19 July 2019, which reflects that the applicant is the direct employer, it notes that a variation to the agreement provides for a higher annual salary of $80,000 effective 1 October 2022 and an amendment dated April 2023 which removes reference to the Award on the basis that the position is managerial.
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’. 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. 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. Regulation 2.57A provides for the meaning of ‘earnings’: 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), which is $53,900, 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).
According to IMMI 18/033, the annual market salary rate for an equivalent nominated occupation or an occupation in relation to which a position is nominated under reg 2.72(17) of the Regulations is the annual earnings of an Australian worker contained in those instruments. The initial contract made between the applicant and nominee on 19 July 2019 refers to the Storage Services and Wholesale Award 2020 applying. However, a later document sets out that the position is managerial and so the Award does not apply. In these circumstances where there is no fair work instrument, State industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under reg 5.19 of the Regulations is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.

For the purposes of the instrument, relevant information may include, but is not limited to:
(a) information published on the Australian Government’s Job Outlook website;
(b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
(c) written advice from registered employer associations and/or unions;
(d) remuneration surveys generated across the relevant industry by a reputable organisation or body.
The applicant had provided information on how the rate had been determined to the Department, producing copies of various webpages of job advertising companies, being Adzuna and Indeed (au.indeed.com) for Distribution Manager in Sydney and Distribution Manager in Australia respectively dated 19 July 2019; and the webpage from for Average Distribution Manager Salary in Sydney, NSW of the same date was provided which reflects an average base salary of AUD76,339. Following the hearing, a copy of the webpage from for Average Distribution Manager Salary in Sydney, NSW was provided dated 14 April 2023 which reflects an average base salary of AUD77,511. The Tribunal notes that the Job Outlook website does not appear to be accessible or updated any longer. The Australian Government Labour Market Insights website reflects that the weekly wages of $2,698 for a Supply and Distribution Manager[1] would be indicative of a higher annual salary than that of AUD77,511. However, there is also an indication on the relevant webpage that it will soon be archived and replaced by Job and Skills Australia which does not appear to contain details of this nature for occupations.
[1] >
Based on the information provided, the Tribunal considers that the information from is relevant information and is satisfied that the rate was determined having regard to the terms of the instrument. This means that the requirements of reg 2.72(15)(c) are met.
As the annual market salary rate of AUD77,511 for the nominated occupation of Supply and Distribution Manager is more than TSMIT of $53,900, the requirements of reg 2.72(15)(d) are met.
The nominee’s annual earnings will be $80,000, which means it will not be less than the rate for the occupation so the requirements of reg 2.72(15)(e) are met.
Given the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT, the requirements of reg 2.72(15)(f) are met.
There does not appear to be any current information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation and the requirements of reg 2.72(15)(g) are therefore 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. In addition, 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).
The Tribunal is not aware of any 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. The employment contract reflects terms and conditions that appear consistent with the Award and the Fair Work Act 2009 (Cth) and other applicable legislation. This means that the requirements of reg 2.72(18)(a) are met.
There is no evidence before the Tribunal that the applicant has engaged in any discriminatory recruitment practices, which means that the requirements of reg 2.72(18)(b) are also met.
Labour market testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB–140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
There do not appear to be any relevant international trade obligations in the circumstances of this case, as the nominee is a national of Italy. Nor is the nomination subject to the major disaster exemption or the skill and occupational exemptions – s 140GBB and s 140GBC.
Given this, it is necessary for the applicant to fulfil the labour market testing condition, which 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 which is 4 months ending on the day on which the nomination form in relation to the nominated application is lodged. 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 4 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 evidence provided with the nomination, which included copies of job advertisements one of which was posted on the jobactive website hosted by on 21 June 2019 with an expiry of 19 July 2019, for 29 days, and the other on the Indeed website[2] from 20 or 21 June 2019, for 30 days (having regard to the information that after 30 days, jobs on Indeed are automatically paused). Both these websites are recruitment websites with national reach in Australia. The advertisements included a title of the position of ‘Supply & Distribution Manager’, a position description, and stated that the position was full-time in Auburn, NSW, with a salary range of $80,001 to $100,000 on jobactive and $80,000 to $84,000 on Indeed. The advertisements stated the name of the applicant and included information about the role and skills required. As the nomination was made on 5 August 2019, the advertisements were each published for a total period of at least 4 weeks in the relevant period.
[2] Copy of link to expired job advertisement accessed on 2 May 2023: >
The Tribunal is satisfied that 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 meet the requirements set out in instrument IMMI 18/036.
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). The latter currently prescribes the amount of charges applicable for Subclass 457 and 482 visas as: if the annual turnover for the nomination is less than $10 million – $1,200 per year; if the annual turnover for the nomination is equal to or more than $10 million – $1,800 per year; if the nomination is in the Labour Agreement stream and the nominated occupation is a minister of religion or religious assistant – nil charge. 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).
The application was made on 5 August 2019 which means that the applicant is liable to pay the charge.
The information before the Tribunal reflects that the applicant paid the training contribution charge of $3,600, which is $1,800 for 2 years. Noting that the position is for up to 2 years, the requirements of s 140GB(2)(aa) are therefore met.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Wan Shum
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.

[2023] AATA 1359

5 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction