Red Earth Energy Storage Pty Ltd (Migration)

[2024] AATA 2436

Red Earth Energy Storage Pty Ltd (Migration) [2024] AATA 2436 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Red Earth Energy Storage Pty Ltd

REPRESENTATIVE:  Mr Rex Howard (MARN: 9251016)

CASE NUMBER:  2108135

HOME AFFAIRS REFERENCE(S):          BCC2020/1420938

MEMBER:George Hallwood

DATE:27 June 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 27 June 2024 at 4:31pm

CATCHWORDS
MIGRATION – nomination – Short-term – Technical Sales Representative – a standard business sponsor – the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument – no adverse information – position associated with the nominated occupation is genuine – no less favourable terms and condition of employment – nomination training contribution was paid by the applicant –  decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 June 2021 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).

2. The applicant applied for approval on 23 April 2020. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl 2.72(8) because they found the position associated with the nominated occupation of Technical Sales Representative nec - 225499 is based in a call centre and does not require a significant technical knowledge of products. They were satisfied that the position was subject to the applicability exception specified in the relevant legislative instrument (IMMI 19/048).

4. Mr Charles Walker, CEO/MD appeared before the Tribunal on behalf of the applicant, Red Earth Energy Storage Pty Ltd (Red Earth) on 28 March 2024 to give evidence and present arguments. This was a combined hearing with that of the related visa applicant, Mr David Patrick Nolan - case number 2113937, who also gave evidence.

5. The applicant was represented in relation to the review.

6. 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

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

The nomination must comply with the prescribed process

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

2. Based on the documentary evidence provided by the department the Tribunal is satisfied that:

• Red Earth is nominating the occupation of Technical Sales Representative nec under s 140GB(1)(b) in relation to Mr Nolan who is an applicant for a Subclass 482 visa: reg 2.73(1);

• The nomination lodged on 23 April 2020 was made using the approved form and fee ($330): regs 2.73(3), (4) and (5);

• The nomination was accompanied by the applicable nomination training contribution charge ($2,400): reg 2.73(5A);

• The nomination is in the Short-term stream and the occupation is a short term specified skilled occupation: reg 2.73(6);

• Red Earth has identified the nominee, Mr Nolan, in the nomination: reg 2.73(8);

• The nomination includes the name of the occupation, Technical Sales Representative nec, and the corresponding 6 digit code, 225499, the location at which the occupation will be carried out, Darra Queensland, the proposed period of stay for a visa granted on the basis of the nomination - up to two years, the annual turnover for the nomination, and any other information specified in the relevant instrument – LIN 19/048: reg 2.73(9);

• The nomination includes written certification that Red Earth has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);

• The nomination includes written certification that the employment contract with Mr Nolan will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);

• The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and, unless the occupation is exempt, that the position is in the person’s business or an associated entity’s business: reg 2.73(14).

1. Therefore, the Tribunal is satisfied that the process in reg 2.73 was followed.

2. For these reasons the requirements of reg 2.72(3) are met.

No adverse information known to Immigration

1. 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.

2. In response to the question on the Nomination for a Temporary Skill Shortage Visa form: “Is there any adverse information to declare about the applicant or a person associated with the applicant, including any information relating to the contravention of Australian laws, insolvency, sponsorship breaches and/or other circumstances which might reasonably be considered adverse information?” the applicant answered “No”.

3. At the hearing Mr Walker told the Tribunal he is not aware of any adverse information known to Immigration. There is nothing before the Tribunal that suggests there is any adverse information known to Immigration.

4. For these reasons the requirements of reg 2.72(4) are met.

Nominator is a standard business sponsor

1. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

2. Departmental records demonstrate that Red Earth is a standard business sponsor from 19 June 2020 until 19 June 2025.

3. For these reasons the requirements of reg 2.72(5) are met.

Payment of debt mentioned in s 140ZO

1. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

2. Departmental records indicate that there is no debt owed in relation to s 140ZO of the Act. Mr Walker affirmed that he was unaware of any debt owing.

3. For these reasons the requirements of reg 2.72(5A) are met.

Requirements for existing Subclass 457 or Subclass 482 visa holders

1. 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).

2. 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

1. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

2. The nominated occupation of Technical Sales Representative nec, and the corresponding 6 digit code - 225499 is specified in LIN 19/084 on the Short-term Skilled Occupation List. The nominated occupation is subject to two applicability conditions specified in the instrument:

   2)   The position has nominated annual earnings of less than AUD65,000; and
   15) The position:

   (a)is based in a front-line retail setting; or

   (b)is based in a call centre and does not require a significant technical knowledge of products; or

   (c)predominantly involves selling educational courses to individual students.

3. The Nomination for a Temporary Skill Shortage Visa form states that the nominated annual earnings are AUD65,000 which is not less than AUD65,000.

4. A Red Earth organisation chart from September 2023 shows the position associated with the nominated occupation as Technical Sales Representative within the Sales & Marketing department of the business. The position is not shown within the same structural line as the Contact Centre Coordinator.

5. A submission from the applicant’s representative dated 6 April 2021 describes the business: “Red Earth Energy Storage Pty Ltd engineers and assembles high-quality solar battery solutions right here in Australia, tailoring products to most effectively harness solar power.  The business specialises in the field of energy storage, engineering and assembling affordable battery systems to improve sustainability for retail and commercial clients”. The submission then goes on to describe how the duties of the position fit within the business structure: “The duties of the nominated position involve connecting the requirements of clients for energy storage with the services and products provided by the company”.

6. Mr Walker told the Tribunal that while the business had a call centre at one stage, the nominees position was not within the call centre and they no longer have a call centre.

7. The Tribunal is satisfied that the position is not based in a front-line retail setting and does not involve selling educational courses to students. The level of technical knowledge required for the position is reflected in the Purpose of the Position section of the Position Description of FY 23-24 which states:

   The Technical Consultant’s in-depth technical and financial analysis of the parameters assesses and finds a viable energy storage solution. Each solution is tailored to the customer’s situation, needs and objectives with both a technical electrical power versus energy understanding as well as financial viability for each individual scenario. The Consultant’s skillset plays a critical role for not only Australia, but also Queensland and directly for RedEarth in the penetration of renewables in Queensland’s Energy and Jobs plan and 70% emissions reduction targets in advance of the 2032 Olympics.

8. Mr Nolan’s skills and educational background support the expected significant technical knowledge of products to fulfil the position requirements.

9. A Skills Assessment from VETASSESS for the nominated occupation of Technical Sales Representatives nec (ANZSCO Code: 225499) matches Mr Nolan’s skills with the requirements of the job. His qualifications include a Bachelor of Business and a Master of Science in the field of Energy and Environmental Finance - both assessed as AQF level and highly relevant for the position associated with the nominated occupation.

10. For these reasons the Tribunal is satisfied that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument and the occupation in this case does not match either of the inapplicability tests.  

11. For these reasons the requirements of reg 2.72(8) are met.

Position must be genuine and full-time

1. 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.

2. The duties and responsibilities of the position are set out in Red Earth’s Position Description of FY 23-24. The requirements of the position are closely aligned with the duties of the nominated occupation as set out in ANZSCO. Based on the organisation chart, position description, and financial documents provided the Tribunal is satisfied that the nature and scale of the business demonstrates that the position associated with the nominated occupation is genuine. The employment contract dated 28 March 2024 and the nomination application both demonstrate that the position is full time, and the financial statements demonstrate that the business is capable of employing the nominee for the period of the visa despite losses that are well explained in the application.

3. For these reasons the requirements of reg 2.72(10) are met.

Employment under contract

1. 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. 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.

2. The nominated occupation is not specified in LIN 19/212.

3. A contract of employment dated 28 March 2024 signed by the employer and nominee has been given to the Minister and demonstrates that the nominee will be engaged as an employee under a written contract of employment by the applicant.

4. For these reasons the requirements of reg 2.72(11) are met.

Annual earnings

1. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

   ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

   ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);

   ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

   ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

   ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

2. For the purpose of considering the criteria below, the rates determined by the applicant and the rates contained in the instrument are as follows. The specified amount of annual earnings in the instrument is $250,000. The market salary rate as determined by the applicant is $145,000. The annual earnings determined by the applicant is $145,000. The TSMIT in the instrument is $53,900.

3. 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.

4. In their nomination application the applicant stated that there were no Australian employees doing the same work as the nominated person. A submission from the applicant’s representative dated 29 April 2020 describes the method used to determine the annual market salary rate. At the hearing the applicant told the Tribunal that there was not an applicable award for the position. They used a combination of the Payscale salary report and Indeed remuneration survey together with the sponsor’s personal knowledge of the salary situation for technical sales representative positions in Brisbane to determine the market salary rate for the position. This approach is consistent with the requirement specified in the instrument IMMI 18/033. Therefore, the Tribunal is satisfied the annual market salary rate for the nominated occupation is $145,000 and it has been determined by the applicant in accordance with the relevant instrument. For these reasons the requirements of reg 2.72(15)(c) are met.

5. The market salary rate excluding any non-monetary benefits for the occupation is therefore not less than the TSMIT. For these reasons the requirements of reg 2.72(15)(d) are met.

6. The nominee’s annual earnings in relation to the occupation will not be less than the market salary rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.

7. The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.

8. There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

Employment conditions

1. 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.

2. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies.

1. A contract of employment dated 28 March 2024 and signed by the applicant and the nominee contains a standard set of conditions included in the Fair Work Act 2009, and the minimum standards of employment in Australia set out in the National Employment Framework.

2. There is no information before the Tribunal that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent.

3. For these reasons the requirements of reg 2.72(18)(a) are met.

4. There is no information before the Tribunal that indicates the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(b) are met.

Labour Market Testing

1. 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).

2. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036. In addition:

   ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) 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.

3. 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.

4. Labour market testing applies to the applicant in this case as it is not be inconsistent with an international trade obligation determined in the relevant instrument – s 140GBA(1)(c); and the nomination is not subject to the major disaster exemption or the skill and occupational exemptions– s 140GBB and s 140GBC.

5. The applicant’s representative provided a submission in relation to labour market testing dated 23 April 2020. Based on this submission together with attachments the Tribunal is satisfied that:

   o labour market testing has been undertaken in the specified period set out in LIN 18/036 – ss 140GBA(3)(a) and (4);

   o labour market testing was undertaken in the manner set out in the legislative instrument LIN 18/036 – ss 140GBA(3)(aa) and (5);

   o the nomination was accompanied by evidence of the labour market testing – ss 140GBA(3)(b)(i) and (6A) as set out in LIN 18/036;

   o the nomination was accompanied by information about retrenchments or redundancies – s 140GBA(3)(b)(ii);

   o there are no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position – s 140GBA(3)(d); and

   o as no Australians or permanent residents were made redundant or retrenched the testing does not post-date the redundancies or retrenchments – s 140GBA(4A).

6. For these reasons, the labour market testing requirements in s 140GBA are met.

Nomination training contribution charge

1. Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).

2. The Department’s records demonstrate to the Tribunal’s satisfaction that the applicant is liable to pay the nomination training contribution charge, which in this case was $2,400 and which the applicant has paid. For these reasons the requirements of s 140GB(2)(aa) are met.

Concluding paragraphs

1. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

George Hallwood
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

1. This regulation applies in relation to a person who:

   (a)is any of the following:

   (i)       a standard business sponsor;

   (ii)      a person who has applied to be a standard business sponsor;

   (iii)     …

   (iv)    …

   (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

   (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

   (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

   (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

2. For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

1. The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

2. 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.

3. 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.

1. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

3. The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. …