Rivertree Land & Cattle Company Pty Ltd (Migration)

Rivertree Land & Cattle Company Pty Ltd (Migration) [2023] AATA 4328 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Rivertree Land & Cattle Company Pty Ltd
REPRESENTATIVE:  Mr Ettienne de Villiers Hugo
CASE NUMBER:  2003647
HOME AFFAIRS REFERENCE(S):          BCC2019/5792919
MEMBER:Wan Shum
DATE:15 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 15 December 2023 at 5:22pm
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition stream – position of Guest House Manager – financial capacity to employ the nominee for at least two years – nominee previously employed in the occupation – unsecured current liabilities – terms and conditions of employment no less favourable – genuine need for the employment – decision under review set aside
LEGISLATION
Income Tax Assessment Act 1997
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.03, 2.72, 5.19, 5.37
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 6 February 2020 to reject the application for approval of the nomination of a position made by Rivertree Land & Cattle Company Pty Ltd under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
In this case, the application for approval of a nomination was made by Rivertree Land & Cattle Company Pty Ltd (the nominator) on 15 November 2019 under the Temporary Resident transition stream. Mr Charles Samuel Hamilton-Fox had previously been granted a Subclass 457 visa based on sponsorship by the nominator and was identified as the person the nominator wished to continue to employ for the position. He lodged a Subclass 187 visa application in respect of this nomination.
The delegate refused the application on the basis that the nomination did not satisfy reg 5.19(5)(l) of the Regulations. The delegate formed the view that the nominator had not demonstrated it has the financial capacity to employ the nominee on a full-time basis with remuneration of $54,000 for at least two years.
Mr Hamilton-Fox’s visa was refused as a consequence.
The nominator and Mr Hamilton-Fox have sought review of these decisions. Both parties are represented in relation to the review by the same registered migration agent.
Ms Le Cras appeared on behalf of the nominator by videoconference using Microsoft Teams, in her capacity as the Director, at a hearing on 20 April 2023, to give evidence and present arguments in relation to this application. The Tribunal also received oral evidence from Mr Charles Samuel Hamilton-Fox in connection with this application. The representative was present throughout the Tribunal hearing from a different location.
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 this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The information before the Tribunal is that the nominator operates an Agritourism business known as “Farm Club Australia” which combines accommodation and farm experiences located near Moss Vale in the Southern Highlands region of New South Wales.
The evidence reflects that the nominator is owned by Ms Alice Le Cras, who is the Director.
The application for the nomination the subject of this review was made under the Temporary Residence Transition stream. The application form was completed with the work location postcode of 2577, with the occupation and position to be filled identified as ‘Accommodation and Hospitality Managers nec’ and ANZSCO code 1411999. The legal registration and trading name under the business/organisation details were given as ‘Farm Club Australia’ and the industry selected was ‘Accommodation and Food Services’.
The job description provided is for “Guest House Manager” granted on 12 April 2016
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.
The information before the Tribunal is that the application was made on 15 November 2019 in accordance with approved form 1395 (Internet) as required, and was accompanied by the fee mentioned in reg 5.37. The application identified:
·the position of Guest House Manager;
·the occupation of Accommodation and Hospitality Managers nec (ANZSCO Code 141999) in relation to the position;
·Mr Charles Samuel Hamilton-Fox in relation to the position; and
·Subclass 187 and the Temporary Residence Transition stream to which the nomination relates.
The nominator’s response on the form to the question seeking certification that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) was ‘yes’.
Given the above, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
The Tribunal is not aware of any adverse information known to Immigration about the nominator or a person associated with the nominator and the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is New South Wales and the relevant occupation is Accommodation and Hospitality Managers nec - 141999. Having regard to the ANZSCO description and other information before the Tribunal, there is nothing to indicate that licensing/registration or membership requirements of a professional body are required to perform the tasks for the nominated occupation.
Given this, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
There is no information before the Tribunal which reflects that the nominator has had any issues with employment laws.
Given this, the Tribunal finds that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full. There is no information before the Tribunal which indicates that the nominator has any debt payable under s 140ZO and the Tribunal finds that reg 5.19(4)(da) is met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives which, following amendments to the Regulations, now include all Subclass 457 and 482 visas regardless of the stream or the circumstances of the grant of the visa. Additionally, nominees need to hold the relevant visa for a total of 2 years out of the 3 years immediately before the nomination application was made.
At the time of nomination application, the nominee held a Subclass 457 visa and had held that visa since 12 April 2016 which means that he held the visa for more than 3 years.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.
Occupation requirements – regs 5.19(5)(b), (d)
A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b) and (d). The occupation identified in this application is Accommodation and Hospitality Managers nec - 141999. This is the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the nominee’s most recently held Subclass 457 visa was granted and the Tribunal finds that reg 5.19(5)(b) is met.
In addition, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).
In considering whether there is any such information, the Tribunal has had regard to the ANZSCO description of Accommodation and Hospitality Managers nec, but notes that there are no separate tasks listed for the occupation. It has therefore considered the tasks listed for the Minor Group of Accommodation and Hospitality Managers under ANZSCO to which the nominated occupation belongs. The lead sentence for the unit group describes ACCOMMODATION AND HOSPITALITY MANAGERS as persons who “organise and control the operations of establishments which provide accommodation and hospitality services.” The other Unit Groups in the section include Cafe and Restaurant Managers; Caravan Park and Camping Ground Managers; Hotel and Motel Managers and Licensed Club Managers. Given this diversity of occupations, the Tribunal would not expect that certain tasks for the Minor Group would not be tasks of the nominated position.
Having considered the updated job description and evidence given at the hearing by both Ms Le Cras and the nominee, the Tribunal accepts that the nominee is responsible for the “hands on” day to day operations of the venue’s guest houses and customer experiences, while the reservations and bookings are managed by another guest house manager located at the nominator’s Byron Bay property. The Tribunal accepts that the nominee’s responsibilities have increased and incorporates responsibility for managing additional new guest houses and that he has been performing the tasks of the position.
Given this, the Tribunal finds that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation. The Tribunal finds that regs 5.19(5)(b) and (d) are met.
Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)
Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).
Firstly, reg 5.19(5)(e) requires that the identified person must have held a Subclass 457 or a Subclass 482 visa one or more of the following visas for a total period of at least 2 years in the period of 3 years immediately before the nomination application was made.
Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 2 years during the period of 3 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.
If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then the identified person was employed in that occupation for a total period of at least 2 years (not including any periods of unpaid leave) during the periods of 3 years immediately before the nomination application was made.
The Tribunal is satisfied on the evidence that the nominee was employed in the position to which the Subclass 457 visa was granted on a full-time basis in Australia, for a total period of at least 2 years during the period of 3 years immediately before the nomination application was made.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.
Status of the nominator – reg 5.19(5)(h)
The information before the Tribunal is that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
Given the above, the Tribunal is finds that reg 5.19(5)(h) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine.
Having considered the evidence of Ms Le Cras, the nature of the business, the nominator’s website and various photographs of the nominee with guests at the property, the Tribunal considers that the nomination application identifies a need for the nominee to be employed in the position, under the direct control of the nominator, and that the need is genuine.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.
Future employment – regs 5.19(5)(l), (m) and (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
When the nomination was made, financial reports were provided for the period 1 July 2017 to 30 June 2019. The delegate was of the view that the nominator had not demonstrated it has the financial capacity to employ the nominee on a full-time basis with remuneration of $54,000 for at least two years.
As was the case when the nomination was made, the special purpose financial reports for 30 June 2021 and 30 June 2022 reflect that the nominator has liabilities in excess of its assets and has continued to operate a loss. In 30 June 2022, the liabilities have increased to $4,958,499, the bulk of which are listed as ‘Financial liabilities’ in the balance sheet. According to the notes, these are unsecured current liabilities with Alice Le Cras, and the companies Nibico Pty Limited, Owen Peters Limited, Bennel and Company Limited, Des Vignes Limited and PHC Holdings Pty Ltd.
In explaining the nature of the nominator’s connection with these companies, it was submitted that Nibico Pty Ltd and PHC Holdings Pty Ltd are Australian private companies. Ms Alice Le Cras is the director of Nibico Pty Ltd, and PHC Holdings Pty Ltd is owned by Mr Hugh Clarke (the sole director) who is Ms Alice Le Cras’s partner. The other companies are incorporated in Jersey and owned by the Estate of the late Vera Le Cras (the Estate) and that Alice Le Cras is a beneficiary of the Estate.
The Tribunal was provided with further letters from the accountant and managing partner of a law firm based in Jersey who confirms that, as the executor of the Estate, the indebtedness “is not material in value to the estate and in any event has been arranged to support Ms Le Cras as a beneficiary and in support of the management of the wider interests of the estate in Australia. There is no intention that it should be called in in the foreseeable future. Indeed if further funds were needed then they would likely be readily advanced.”
While the Tribunal has not been provided with the trust deed and related documents, having considered all of the evidence which includes the continued employment of the nominee as well as the personal bank account statement of Ms Alice Le Cras, the Tribunal has formed the view that the nominator has the financial capacity to employ the nominee on a full-time basis with remuneration of $71,000 for at least two years which is greater than the annual market salary rate.

Ms Le Cras has also made clear that they wish for him to continue employed to ensure the ongoing successful trading for the business.
Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.
Annual earnings – reg 5.19(5)(o)
Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument. 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: 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 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’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): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’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: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
According to IMMI 18/033, the Annual Market Salary Rate (AMSR) for an equivalent nominated occupation, or an occupation in relation to which a position is nominated under reg 5.19 of the Regulations, is the annual earnings of an Australian worker contained in that instrument.
When making the application, the applicant provided SEEK job advertisements to show how the AMSR was determined. On review, the Tribunal requested submissions on how the AMSR was determined and was provided with further job advertisements after the hearing with a letter from the accountant confirming that the salary of the nominee would be increased to $70,000. However, given the terms of the instrument, if there is an applicable fairwork award that applies for the nominated position, that is the relevant rate. Based on the nature and description of the position, the Tribunal understands that the Hospitality Industry (General) Award 2020 applies.
This means that the Annual Market Salary Rate for reg 2.72(17) for a managerial position must be determined by reference to clause 18.2 of the Award which applies to Managerial staff (Hotels). This states that:
·An employer must pay an employee within the Managerial Staff (Hotels) classification level as defined by Schedule A—Classification Structure and Definitions a minimum annual salary of $56,557.
For an annualized salary, clause 25 applies to all employees within the Managerial Staff (Hotels) classification level as defined by Schedule A—Classification Structure and Definitions which requires that these employees are paid a salary that is at least 125% of the minimum annual salary in clause 18.2—Managerial staff (Hotels).
Therefore, the AMSR is $70,696.25 for the purposes of reg 2.72(15)(c). The Tribunal finds that the AMSR for the nominated occupation of Accommodation and Hospitality Managers nec is more than the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900.00 and that the requirements of reg 2.72(15)(d) are met.
As the nominee’s annual earnings of $71,000 will not be less than the rate for the occupation, the requirements of reg 2.72(15)(e) are met.
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.
There is no information before the Tribunal that indicates the AMSR is inconsistent with Australian labour market conditions relevant to the occupation and the requirements of reg 2.72(15)(g) are therefore met.
Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.
No information to indicate less favourable employment conditions – reg 5.19(5)(p)
There does not appear to be any information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information. Given this, the Tribunal finds that reg 5.19(5)(p) is met.
Information required by the Minister – reg 5.19(5)(q)
Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.
The Tribunal finds that the information required has been provided by the nominator which means that reg 5.19(5)(q) is met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Wan Shum
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)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 identified person 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;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2023] AATA 4328

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing