QV Teppanyaki & Sushi Bar Pty Ltd (Migration)

QV Teppanyaki & Sushi Bar Pty Ltd (Migration) [2022] AATA 2064 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  QV Teppanyaki & Sushi Bar Pty Ltd
REPRESENTATIVE:  Mr Jensen Ma (MARN: 9802879)
CASE NUMBER:  1905808
HOME AFFAIRS REFERENCE(S):          BCC2019/121098
MEMBER:Amanda Mendes Da Costa
DATE:11 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 11 May 2022 at 1.42pm

CATCHWORDS
MIGRATION–nomination – no adverse information – position associated with the nominated occupation is genuine – applicant was approved as a standard business sponsor – Tribunal is satisfied that the nominated position is not in a limited-service restaurant – at the time of application labour market testing requirements applied – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.19
CASES
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 20 February 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 21 January 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfys.140GBA of the Act because it had not met is Labour Market Testing obligations.
On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour. It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.
The applicant was represented in relation to the review.
The Tribunal has considered the material in both the Departmental and Tribunal files.
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.
Background
The applicant operates a Teppanyaki and Sushi restaurant located in the Queen Victoria Centre, Melbourne CBD. ASIC records show the business was registered on 18 July 2002.
On 21 January 2019 the applicant lodged an application under the Temporary Skill Shortage Subclass 482 stream for the occupation of Cook (ANZSCO 351411). The nominated guaranteed annual earnings are $55,000 per annum.
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 has had regard to the material in the Department’s file and is satisfied that:
·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa: r.2.73(1);
·the nomination was made using the approved form and fee: r.2.73(3), (4) and (5);
·the nomination was accompanied by the applicable training contribution charge: r.2.73(5A);
·the nomination was made in the Short-term stream as the nominated occupation of Cook (ANZSCO 351411) is a Short-term specified skilled occupation in the relevant instrument, IMMI 18/048: r.2.73(6);
·the applicant identified the nominee, Jia Jia Loh, in the nomination: r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nominating business: r.2.73(9);
·the nomination includes disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt: r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(3) are met.
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 has reviewed the Department’s records and notes that there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration within the meaning provided in r.1.13A and r.1.13B.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Departmental records indicate that the applicant was most recently approved a standard business sponsor, commencing on 11 July 2017 and ending on 11 July 2022.Accordingly, the Tribunal is satisfied that the person making the nomination is a standard business sponsor and 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 evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
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.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Cook (ANZSCO 351 411) is specified in the Short-term skilled occupation list in IMMI 18/048.
The Tribunal notes that IMMI 18/048 include two Inapplicability Conditions (8 and 9) which apply to the position of Cook. They provide:
7. The position is involved in mass production in a factory setting.
8. The position is in a limited-service restaurant.
The nominated position is not involved in a factory setting and therefore the Tribunal finds that Inapplicability Condition 7 does not apply.
The applicant provides eat in, takeaway and home delivered meals to its customers. For eat in customers, meals are served to customers at their tables by staff, using reusable crockery and cutlery.
Accordingly, the Tribunal is satisfied that the nominated position is not in a limited-service restaurant.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has considered the organisational hart, position description, employment contract ,the business’s financial profile (including Business Activity Statements and Financial Statements for the years ending 30 June 2020 and 2021) and publicly available information about the applicant’s business.
The Tribunal notes that the applicant operates a chain of specialty Japanese restaurants serving authentic chicken and pork-based ramen noodle dishes which have their origins in Hakata, Fukuoka, Japan. The applicant has four outlets in Melbourne (including the QV Centre and Hawthorn) and two outlets in Perth. Although the outlets have a standard menu, there are some variations in the type of broth used – Torigara (chicken) and Torikotsu (pork) – depending on the location and dietary and religious preferences of customers. In addition to the Ramen noodle dishes, the restaurants offer The restaurant also offer other Japanese dishes with the Hawthorn outlet concentrating on rice-based dishes. The applicant proposes to employ the nominee in its QV Centre outlet.
In his oral evidence, Mr Tan explained that the applicant’s staff prepare the dishes served in its outlets from fresh ingredients and over 80% of the food produced uses ingredients prepared by the applicant’s staff. In the case of the noodle component of the dishes, the applicant uses ingredients supplied to the applicant by a regular supplier.
The Tribunal accepts Mr Tan’s evidence that the preparation of the broth is crucial in replicating the depth of flavours for the noodle dishes served to customers and involves substantial preparation including the preparation of the meat, vegetables and seasoning and cooking of the broth over a sustained period of time. During the cooking process the Cook is required to constantly monitor the broth and adjust the seasonings to taste.
The applicant has provided the Tribunal with a position description which shows that the tasks to be performed by the nominee are commensurate with those set out in the ANZSCO dictionary for the position of Cook.
Based on the size and nature of the applicant’s business and organisational structure of the QV Centre outlet, the Tribunal is satisfied that the nominated position is full-time and genuine.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. The tribunal is satisfied that the nominated occupation in this case is not specified in the relevant written instrument. 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(11 must be met.
The applicant has provided an employment contract dated 7 January 2019 and an updated employment contract dated 2 May 2022, setting out the nominee’s terms and conditions of employment with an annual salary of $57,500 (exclusive of superannuation).
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 (currently $250,000). 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, currently $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 th is 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).
The Tribunal has considered the contract of employment dated 7 January 2019 and the updated contract of employment dated 2 May 2022. Based on the evidence provided, the Tribunal is satisfied that the nominee’s current annual earnings are not equal to or greater than $250,000. Accordingly, the applicant must satisfy r.2.72915).
The Tribunal has been provided with evidence which shows that the applicant has determined the annual market salary by way of reviewing advertisements and industry salary survey information. In the nomination application, the applicant indicated that there is no equivalent Australian worker performing the same work as the nominated person.
The applicant has provided advertisements for similar positions and industry salary survey information on the Indeed.com website. These advertisements lists the salary range for a Cook position is between $54,000 and $60,000.
The Tribunal notes that Payscale.com shows that the annual salary range for the position of Cook is between $48,000 and $58,000 with a median salary of $54,253.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15(c) are met.
The Tribunal is satisfied that the annual market salary rate exceeds the current TSMIT of $53,900 and accordingly finds that the requirements of r.2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings of $57,500 (as indicated in the nominee’s updated employment contract dated 2 May 2022) will not be less than the market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s annual earnings as evidenced in the nominee’s contract of employment exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.
The Tribunal is further satisfied that there is no information before it that indicates that the annual market salary is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
Accordingly, the requirements of r.2.72(15) 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.
The Tribunal has had regard to the terms and conditions of the nominee’s proposed employment as set out in the updated employment contract dated 2 May 2022 and that the terms and conditions appear consistent with the Fair Work Act 2009 and national Employment Standards.
The Tribunal is therefore satisfied that r.2.72(1*(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that r.2.72(18)(b) is 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 the relevant legislative instrument: LIN 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.
In this case the labour market testing requirements apply to the applicant.
The Tribunal notes that IMMI 18/036 states (in part) as follows:
(5)      For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a)      print media;
(b)      radio;
(c)      website.
The delegate was not satisfied that the applicant had satisfied the labour market testing condition because although it had provided the Department with an advertisement on SEEk.com dated 17 December 2018 and an undated advertisement with Indeed.com, the employment contract provided was dated 17 December 2018. This meant that the employment contract provided is date 21 days after the commencement of the labour market testing which is a shorter period than the minimum of 4 weeks prescribed by IMMI 18/036.
Mr Tan is the CEO of the applicant and was previously employed for six years as the Operating Officer. He is authorised to give evidence on behalf of the company.
Mr Tan told the Tribunal that the nominee had been employed by the applicant since 2016. From December 2016 to July 2018 she was employed at the QV Centre outlet and from July 2018 she has been employed at the Hawthorn outlet. In the event that the nomination application is approved, the applicant intends to move the nominee from the Hawthorn to the QV Centre outlet where she will be employed on a full-time and ongoing basis.
Mr Tan further explained that:
·     The applicant conducted labour market testing through two job advertisement websites, SEEK.com and Indeed.com. Both advertisements commenced on 17 December 2018 and concluded on 14 January 2019.
·     As the nomination application was lodged on 21 January 2019, the applicant satisfied the requirement to conduct labour market testing within four months before the lodgement of the application.
·     Whilst the applicant received numerous responses to these advertisements in the first fortnight of the website listings, there were no further applications received for the further two weeks until 14 January 2019.
·     The applicant’s primary objective was to hire a skilled and experienced cook in Japanese cuisine in the business and to this effect, conducted interviews throughout the labour market testing period.
·     The nominee applied for this position internally through applicant’s business networks.   She was employed on a part time basis at another outlet in Hawthorn. The applicant simultaneously considered the application of the nominee and those of three other candidates.
·     Whilst the nominee met the requirements for the nominated position, the other candidates were not deemed suitable as they lacked sufficient experience in cooking
The Tribunal questioned Mr Tan about what he would have done if a suitable candidate (other than the nominee) for the nominated position had been identified by the applicant during the labour market testing period. Mr Tan said that if this had occurred, the applicant would have proceeded with the employment of both the nominee and the other candidate. He explained that it was difficult for the applicant to find suitably qualified and experienced staff (particularly cooks and chefs) to work in its outlets. Although this had been exacerbated by the effects on business of the Covid-19 pandemic, the business had also experienced such difficulties prior to this. He said that the applicant was always looking for suitable staff and would have been able to employ the nominee and any additional candidate at the QV Centre (which was a particularly busy outlet with extended operating hours) or another of the applicant’s outlets.
The Tribunal was provided with written submissions[1] (regarding its labour market testing obligations) which may be summarised as follows:
·As the nomination application was lodged on 21 January 2019, the applicant satisfied the requirement to conduct labour market testing within four months before the lodgement of the application.
·The applicant’s experience and understanding of the employment market (including the shortage of qualified cooks) led it to the view that if it did not secure the applicant for the nominated position as soon as possible, it may have risked losing the nominee to other potential employers.
·In order to secure the nominee’s employment, the applicant offered her a conditional contract which commences upon the grant of the nominee’s visa. However, the labour market testing was not discontinued upon the signing of the contract.
·The fact that the labour market testing period was ongoing does not preclude the applicant from offering a position to a suitable candidate. A sponsor should not be required to wait until the end of the labour market testing period to peruse job applications, shortlist any potential candidates and if the circumstances are appropriate, to offer a position, to ameliorate the risk of losing valuable candidates to other rival employers who are also in pursuit of filling similar positions.
·Accordingly, the applicant has complied with its labour market testing obligations.
[1] Dated 1 April 2022.
Findings
The purpose of labour market testing is to ensure that available job opportunities are provided to the Australian workforce[2] before employers are permitted to sponsor overseas workers to fill the required roles. The nominated position must have been advertised for at least four weeks within the four-month period immediately prior to the lodgement of the nomination application.
[2] Comprising Australian citizens, Australian permanent residents or eligible temporary residence holders.
On the evidence before it, the Tribunal is satisfied that the applicant advertised the nominated position on the Seek.com and iZndeed.com websites for a period of four weeks from 17 December 2018 to 14 January 2019, and that this period was within the four-month period immediately prior to the lodgement of the nomination application.
The Tribunal is further satisfied that the applicant and nominee signed a contract of employment dated 7 January 2019, approximately three weeks after the advertising commenced and within the four-week period prescribed by 18/036.
The Tribunal notes that the applicant provided it with four job applications and resumes it received in response to its advertisements for the nominated position. The Tribunal accepts Mr Tan’s evidence that these candidates were not considered suitable for the position, nor were the other candidates who expressed an interest in the position. The Tribunal accepts that the other candidates did not meet the key criterion for the role, which is the expertise, skills and knowledge of cooking authentic Japanese noodle dishes. Although all of the applicants demonstrated experience in making sushi rolls and appetisers they lacked sufficient experience with Ramen noodle dishes.
The Tribunal is satisfied that at the time of application labour market testing requirements applied.
The Tribunal accepts the applicant’s evidence regarding its labour market testing and is satisfied that the online advertisements it placed were not discontinued after the employment contract for the nominee was signed. The Tribunal further accepts that no applications by suitably qualified and experienced candidates were received by the applicant after the first two weeks of the advertisements.
Accordingly, the Tribunal finds that the applicant has undertaken labour market testing in the specified manner and during the period set out in the relevant instrument: IMMI 18/036. The Tribunal also finds that the nomination application was accompanied by evidence of the labour market testing undertaken.
The Tribunal is further satisfied that there are not suitably qualified and experienced Australian citizens, permanent residents or eligible temporary visa holders available to fill the nominated position. Nor were any Australian or permanent residents made redundant or retrenched in order to provide the nominee with the nominated position.
For these reasons, the labour market testing requirements in s.140GBA are met.
The Tribunal is further satisfied that the applicant has paid the nomination training contribution charge in relation to the nomination, for which it is liable.
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.
Amanda Mendes Da Costa
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 2064

11 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal