Rafael's Painting & Maintenance Pty Ltd (Migration)

Rafael's Painting & Maintenance Pty Ltd (Migration) [2023] AATA 4306 (17 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Rafael's Painting & Maintenance Pty Ltd
REPRESENTATIVE:  Mr George Lombard
CASE NUMBER:  1932744
HOME AFFAIRS REFERENCE(S):          BCC2019/5192414
MEMBER:Katie Malyon
DATE:17 November 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 17 November 2023 at 9:46 am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Painting Trades Worker – genuine position – tasks and responsibilities undertaken by the nominee – organisation chart – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
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 30 October 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, Rafael’s Painting & Maintenance Pty Ltd T/A Rafael’s Painting and Maintenance ABN 20 613 824 730 (the Company), applied for approval on 16 October 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 3 alternative streams: the Short-term stream; the Medium-term stream; or, the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA of the Act.
In this case, the nominee - Uzbekistani national Sardor Abdullaev - is nominated to work in the occupation of Painting Trades Worker ANZSCO 332211. Mr Abdullaev applied for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the Company did not satisfy reg 2.72(10) of the Regulations because it had not provided to the Department any information or submissions to address whether the nominated occupation is genuine. Therefore, on the basis of the limited available evidence lodged with the Department including the position description, employment contract, market rates and evidence of labour market testing (LMT), the delegate was not satisfied that the position was genuine as required by reg 2.72(10) of the Regulations.
On 20 June 2023, the Tribunal invited the Company pursuant to s 359(2) of the Act to provide updated and current information to address all of the relevant criteria in reg 2.72 of the Regulations.
Having perused documentation provided in response to its s 359(2) letter, the Tribunal invited the Company to attend a hearing scheduled for 19 September 2023. The Company was also invited to provide a range of documentation including Financial Reports, Tax Returns as lodged with the Australian Taxation Office (ATO), Business Activity Statements (BAS), PAYG Payment Summaries for the nominee, evidence of the Company’s payment of the nomination contribution charge, details of the current market salary for the nominated occupation and a current Contract of Employment with the nominee.
Hearing - 19 September 2023
The Company’s Director Mr Rafael Shnidman appeared before the Tribunal on 19 September 2023 to give evidence and present arguments on behalf of the Company. The Tribunal also received oral evidence from Company’s internal bookkeeper Desislava Harvey and the nominee Mr Abdullaev. The Company was represented in relation to the review: however, the Company’s then representative did not attend the hearing. The Tribunal found all those attending the hearing to be credible witnesses.
Just 3 days after the hearing, the Company notified the Tribunal of its appointment of a new representative, Mr George Lombard of Playfair Legal. The newly appointed representative provided further documentation to address the requirements in reg 2.72 for approval of the Company’s nomination.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of its 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) of the Act. The applicant must also have paid any nomination training contribution charge in relation to the nomination for which it is liable. In addition, the LMT requirements in s 140GBA of the Act 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 of the Regulations.
The Tribunal has had regard to the material in the Department’s file and is satisfied that: the nomination was made using the approved online form and was accompanied by the correct fee; the Company nominated an occupation under s 140GB(1)(b) of the Act and it identified, in the nomination, an applicant for a Subclass 482 visa as the person who will work in the occupation, Sardor Abdullaev; the Company identified the location where the nominee would carry out the occupation; and, it included the name and 6-digit ANZSCO code for the nominated occupation, that is, Painting Trades Worker ANZSCO 332211. The Company’s nomination also contains the required certifications.
For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(3) of the Regulations 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, the terms ‘adverse information’ and ‘associated with’ have the meaning given in reg 1.13A and reg 1.13B of the Regulations.
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment records, and has found no information to indicate that there is any adverse information known to Immigration about the Company, or a person associated with the Company.
For these reasons, the requirements of reg 2.72(4) of the Regulations are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Evidence before the Tribunal confirms that the Company is a standard business sponsor. Its most recent sponsorship application was approved on 21 October 2019 and is valid until 21 October 2024.
For these reasons, the requirement in reg 2.72(5) of the Regulations is 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 Company 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 charge. As confirmed below at para [65], the Tribunal is satisfied that the Company has paid the applicable nomination training contribution charge and, therefore, there is no debt owed.
For these reasons, the requirement in reg 2.72(5A) of the Regulations is 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); and,
·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 Mr Abdullaev 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 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation of Painting Trades Worker ANZSCO 332211 is specified in the Medium and Long-term Strategic Skills List in IMMI 19/048. The Tribunal is satisfied that the nominated occupation is not subject to any of the occupation inapplicability circumstances (or caveats) set out in that instrument. In addition, the Tribunal is also satisfied that the occupation applies to the nominee, Mr Abdullaev in accordance with IMMI 19/048.
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. As noted above, based on the limited documentation lodgement the Department, the delegate found that that the position was not genuine because no information had been lodged to address this requirement. This is despite the fact that the Company had the benefit of professional advice from its former representative.
The Tribunal has considered the position description for the nominated position and the tasks set out for a Painting Trades Worker in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) at ANZSCO 332211. Relevantly, ANZSCO Unit Group 3322 states that Painters apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces. There is only one occupation in Unit Group 3322, Painting Trades Worker ANZSCO 332211. In the latest version of ANZSCO, the occupation is identified simply as Painter.
The Company has provided a signed contract of employment dated 4 November 2023 (the Contract of Employment) which lists the specific tasks and responsibilities to be undertaken by the nominee:
·         erecting scaffolding and ladders and placing drop sheets to protect adjacent areas from paint splattering
·         prepare surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, smoothing and sealing surfaces, as well as sanding, filling holes, covering with plastic or drop sheets, and washing to remove dust
·         selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives
·         applying paints, varnishes and stains to surfaces using brushes, rollers and sprays
·         hanging wallpaper, matching patterns and trimming edges
·         may repair windows and replace glass in wooden and metal frames
·         may lay and repair wall and floor tiles.
During the course of the hearing, Company director Mr Shnidman provided full details of these tasks. Also provided to the Tribunal was an Organisation Chart. The nominee Mr Abdullaev is currently one of only 2 full-time self-employed Contractors engaged to work with the Company. Also engaged are 2 part-time Contractors. Mr Shnidman told the Tribunal that prior to establishing the Company in 2016 he was himself a self-employed Painter who worked as a Contractor on a range of projects from small residential to large commercial developments. With the benefit of his many years in the industry as well as his recognised reputation, he decided to establish the Company.
The nominee Mr Abdullaev has worked with the Company full-time in the role of Painter since October 2017, that is, just over 4 years. Mr Shnidman confirmed that Mr Abdullaev has worked on both domestic and commercial painting projects with the Company. He started working with the Company in October 2014 on the basis of being a part-time Painter when he was studying. However, he has been working full-time since October 2017. Mr Abdullaev invoices the Company using his own ABN for, typically, 40 hours per week. Mr Shnidman and Mr Abdullaev gave independent evidence at the hearing that Mr Abdullaev is provided with all his tools, equipment, clothing and a Nissan Elgrand car by the Company.
Mr Shnidman told the Tribunal that, following COVID-19, the business has really recovered and he has lots of work in the pipeline such that he really needs Mr Abdullaev to continue working with him as an employee. After the hearing, the representative provided examples of the Company’s forthcoming work, most of which will be undertaken in Sydney’s eastern suburbs of Vaucluse, North Bondi, Kensington, Woollahra and Randwick as well as inner suburban areas such as Redfern. In addition, the representative provided a signed letter dated 28 October 2023 from the Company’s Accountants, TaxFin Pty Ltd, confirming information set out in accompanying signed Financial Statements for years ended 30 June 2022 and 2023. In the 12-month period to 30 June 2023, revenue almost doubled to $651,000 and the Company reported a profit of nearly $22,000. Unsurprisingly, its biggest expense item was subcontractors which totalled $321,278. The Company also reported positive equity.
Based on evidence provided, it is clear that the Company has an established record of providing painting and maintenance services to multiple clients across domestic, commercial and industrial sites in the Sydney metropolitan area. Having regard to this evidence, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and that, as such the requirement in reg 2.72(1)(a) of the Regulations is met.
The Tribunal accepts that the Contract of Employment expressly requires Mr Abdullaev to work full-time as a Painter from the date of grant of his Subclass 482 visa. It also accepts that Mr Abdullaev has been working full-time with the Company in the role of Painter as a self-employed Contractor for 4 years. The Tribunal has independently established from its search of the ABN Lookup website that Mr Abdullaev has held his ABN since 28 October 2014. The Tribunal accepts that the position offered to Mr Abdullaev is full-time and, as such, reg 2.72(1)((b) of the Regulations is met.
As the requirements in both reg 2.72(10)(a) and reg 2.72(10)(b) of the Regulations are met, the Tribunal finds that reg 2.72(10) of the Regulations 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 relevant 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 Company is not an overseas business sponsor and so reg 2.72(11) of the Regulations must be met.
The Tribunal is satisfied that the nominated occupation of Painting Trades Worker ANZSCO 332211 is not specified in IMMI 18/035. It is also satisfied that the Company has, after the hearing, provided the Minister (in this case, the Tribunal) with a copy of the Contract of Employment. This contract supersedes the conditional contract of employment of ‘September 2019’ which was lodged with the Department and due to come into effect when the nominee has ‘permission to work’. In passing, the Tribunal notes that in response to its

s 359(2) request for a copy of the current contract of employment, the former representative merely provided a further copy of the earlier contract lodged with the Department. The earlier contract provided for an annual salary of $55,000 per annum plus 9.5% superannuation.
During the hearing, the Tribunal raised concerns regarding shortcomings in the contract lodged with the Department including its evident failure to refer to the current level of superannuation (11% effective 1 July 2023) and the Tribunal’s concerns regarding the current market salary rate for the position of Painters. Mr Shnidman acknowledged the Tribunal’s comments in this regard and confirmed an updated contract would be provided after the hearing.
As the Company has, with the benefit of professional advice form it newly appointed representative, provided the Tribunal with the Contract of Employment, the requirements of reg 2.72(11) of the Regulations 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 (AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The AMSR 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 AMSR, 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 relevant instrument (TSMIT), unless the AMSR 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 AMSR 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).
The Tribunal has considered the Contract of Employment. Based on evidence provided, the Tribunal is satisfied that the nominee’s annual earnings are not equal to or greater than $250,000 per annum. Accordingly, the requirements of reg 2.72(15) must be met.

IMMI 18/033 sets out the method for determining the AMSR for a nominated occupation. Relevantly, s 8 of IMMI 18/033 specifies the method for determining AMSR where there is no Australian worker performing equivalent work. Based on the Organisation Chart as well as oral evidence at the hearing, the Tribunal accepts that the Company does not engage an Australian citizen or permanent resident employee undertaking equivalent work as the nominee, Mr Abdullaev. It does, however, engage 2 Australians as Painters: Mr Kofman is a full-time self-employed Contractor and Mr Hasanov works as a part-time self-employed Contractor. In addition, the Company engages a temporary resident, Serhii Tremba, as a full-time self-employed Contractor. Currently, the nominee Mr Abdullaev also works as a self-employed Contractor and it is proposed that he will become the Company’s sponsored employee. This is also consistent with information set out in the nomination application lodged with the Department.
The newly appointed representative has provided the Tribunal with evidence which shows the Company has determined the AMSR for the nominated occupation by way of reviewing not only information provided in the Fair Work Ombudsman Pay and Conditions Tool Report having regard to the Building and Construction General On-Site Award 2020 (the Award) but also evidence of advertised positions on seek.com.au and workforce.australia.gov.au advertisements. The Award provides for a weekly pay rate of $1,051.72 including base rate allowances (that is, an annual salary of $54,689.44) for a Level 3 Painter. The representative notes the nominee is provided with a Company vehicle, tools, equipment and appropriate clothing: further, all of his work is carried out in the Sydney region. Information in the Seek advertisement provided offers a salary of $62,400 per annum and the Workforce Australia advertisements offer a salary range of $60,001 - $80,000 for applicants who are permanent residents and, for sponsored temporary visa holders, the salary offered ranges from $50,000 – $70,000 per annum. Publicly available information on the Australian Government’s Labour Markets Insights website confirms the medium full-time earnings for a Painting Trades Worker are $1,237 per week: this represents $64,324 per annum.[1]
[1] Painting Trades Workers | Labour Market Insights
Based on information before it, the Tribunal is satisfied that the AMSR for the nominated occupation has been determined by the Company by reference to IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the AMSR exceeds the TSMIT of $53,900 per annum and, accordingly, finds that the requirements in reg 2.72(15)(d) are met.
Having regard to the Contract of Employment, the Tribunal finds that the nominee’s annual earnings of $65,000 per annum plus superannuation will not be less than the AMSR and, therefore, the requirements of reg 2.72(15)(e) are met. It further finds that the nominee’s total earnings, as evidenced in Mr Abdullaev’s Contract of Employment, exceed the TSMIT and, therefore, the requirements of reg 2.72(15)(f) are met.
The Tribunal is also satisfied that there is no information before it which indicates that the AMSR is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of reg 2.72(15)(g) are met.
Accordingly, for the reasons outlined above, the cumulative requirements of reg 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. 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) of the Regulations.
The Tribunal has had regard to the terms and conditions of the Contract of Employment. It accepts that the terms and conditions set out therein are the same as would apply to an Australian employee performing work in the same occupation of Painter and that the terms and conditions also appear consistent with the Fair Work Act 2009. The Tribunal is therefore satisfied that reg 2.72(18)(a) of the Regulations is met.
There is no evidence before the Tribunal that the Company has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that reg 2.72(18)(b) of the Regulations 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 s 140GBB – s 40GBC of the Act apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, LMT 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 LMT condition, the testing must be undertaken within a prescribed period as set out in detail in the relevant legislative instrument Migration LIN 18/036 Period, manner and evidence of labour market testing Instrument 2018. In addition:
·the nomination must be accompanied by the evidence relating to LMT as specified in s 140GBA(5) and s 140GBA(6) of the Act for nominations made before 12 August 2018 or, in the alternative, in the instrument made under s 140GBA(6A) of the Act for nominations made on or after 12 August 2018;
·the LMT must have been undertaken in the manner determined under s 140GBA(5) of the Act 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 LMT 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 of LMT that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
The Tribunal has considered whether the LMT condition applies in this case and whether:
1)it would be inconsistent with an international trade obligation specified in the relevant instrument IMMI 18/183: s 140GBA(1)(c) of the Act; or,
2)
the nomination is subject to the major disaster exemption or the skill and occupational exemptions specified in the relevant instrument: s.140GBB and

s 140GBC of the Act.
Having regard to the evidence before it, the Tribunal is satisfied the LMT condition applies in this case. There is nothing before the Tribunal to suggest it would be inconsistent with an international trade obligation specified in IMMI 18/183. There is currently no legislative instrument which prescribes a major disaster exemption or a skill and occupational exemption. Accordingly, the Company must satisfy the LMT requirements set out in IMMI 18/036.
Part 2 of IMMI 18/036 sets out details of the period, manner and evidence required for advertising the nominated position. Evidence of these details must accompany the nomination when it is lodged with the Department. Section 6 of IMMI 18/036 states that the period within which the LMT must be undertaken is within the 4-month period ending on the day on which the nomination is lodged.
The Company has provided the Tribunal with evidence of its LMT activities including job advertisements for the position of Painter on Indeed and Jora Australia dated respectively 19 July 2019 and 29 July 2019. Having reviewed information in the Department’s file and is confirmed by Mr Shnidman at the hearing, 11 applications were received in response to the advertisements: however, none of them had the necessary skills and experience for the position.
For these reasons, the LMT requirements in s 140GBA of the Act 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) of the Act in relation to a Subclass 457 or Subclass 482 visa holder or, relevantly, a 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) of the Act.
As the Company’s nomination was lodged after 16 October 2019, it is liable to pay a nomination training contribution charge.
Item 5(2) of the Migration (Skilling Australians Fund) Charges Regulations 2018 sets out the formula for calculating the amount due, which is the base amount prescribed in the legislation multiplied by the number of years of sponsorship. In this case, the Company’s business has an annual turnover of less than $10,000,000 and so the base amount is $1,200 consistent with item 5(2)(b) of the Migration (Skilling Australians Fund) Charges Regulations 2018. The length of visa approval sought by the Company is up to 4 years. Therefore, the amount due is $4,800.
In response to the Tribunal’s request, the Company provided the Tribunal with a copy of Receipt No.200023208670 dated 16 October 2019 issued by the Department for payment of the relevant training nomination charge in the amount of $4,800.
For these reasons, the requirements of s 140GB(2)(aa) of the Act are met.
Conclusion
For the cumulative reasons set out above, the Company 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.
Katie Malyon

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)…
oOOo

[2023] AATA 4306

17 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction